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Issue #1664      November 12, 2014

Saving the Solomons’ cloud forest

Indigenous landowners are taking their government to court over alleged irregularities in a logging company deal. Viewed from above, the island of Kolombangara is almost perfectly round and 30 kilometres across. From ground level, it towers dark green at over 1,770 metres high, with a volcano peak hiding shyly in a veil of cloud.

Kolombangara Island.

Only a few intrepid travellers visit. Hikers who tackle the mud and vines find that the vegetation changes around 400 metres above sea level, beyond which point they are engulfed by the “cloud forest” – a biodiversity wonderland that is home to several species of birds and frogs found nowhere else in the world.

The forest is also home to a network of “Tambu” sites – places important to the history and culture of the people who have lived on the island for more generations than anyone can remember.

Kolombangara is just one of many thousands of islands in the South Pacific, in the Solomon Island Archipelago. While it may not immediately seem remarkable, its own people care deeply about it and are making slow but groundbreaking progress in protecting it.

Most of the 6,000 or so people of Kolombangara live in huts made of timber and leaves, hacked from the bush with chainsaws or enormous bush knives. If they have light at night, it comes from kerosene or solar lamps, or the few diesel generators in the larger towns. Most homes have no plumbing, but water is easy to access from the many streams that course down the steep sides of the towering old volcano.

There are about 90 small villages scattered around the outskirts of the volcano, and a few larger settlements. The most developed town, Ringgi, owes much of its infrastructure to Kolombangara Forests Products Limited (KFPL), a timber company that has had Forest Stewardship Council (FSC) certification since 1998.

The Solomon Islands government owned 100 percent of KFPL until April 2011, when a Taiwanese firm called Nien Made Enterprise bought off 60 percent. At the time, it announced that it was keen to keep the FSC status, which means meeting certain environmental standards.

While KFPL’s 75-year lease covers about 70 percent of the island and extends up to the volcano crater rim, it restricts its commercial activities to land up to 400 metres above sea level and allows traditional owners to access and co-manage the cloud-forest portion of their land.

It also provides vital infrastructure support to the Kolombangara Island Biodiversity Conservation Association (KIBCA), a community organisation established in 2008 to “protect Kolombangara Island’s rich marine and forest biodiversity and to educate, promote and encourage sustainable management of natural resources through viable economic and social ventures”.

It is this association which is pursuing a judicial review of key government officials involved in allowing Success Company Ltd to log an area that spans parts of the cloud forest.

Fighting law with law

The legal framework that the people of Kolombangara are trying to work within is the product of the nation’s long political history.

Customary law is the term now given to the rules that evolved over millennia to govern island life, such as land and water rights, marriages and settling disputes. While ancient in its origins, customary law is still alive and well in the Solomons and governs the lives of many, especially in remote areas.

The first Europeans to visit the Solomons came in 1568; by the 1800s whalers, traders and missionaries started arriving. By the end of the century, contention over British and German control over various Pacific islands was resolved under a treaty that gave Germany more of Samoa and Britain control of all nine of the major island groups in the Solomons.

Britain granted the Solomons independence in 1978 and the young nation’s 50 member-house of parliament started drafting legislation, with the safety net of British law still applying unless it is overridden by the Constitution, an Act of Parliament, customary law or a judicial decision that declares it to be inappropriate.

Other quirks in the new constitution included a provision that, in general, only a Solomon Islander or certain groups such as companies majority-owned by locals can own land. There is also a provision that recognises customary law as a source of law.

The key logging law is the Forest Resources and Timber Utilisation Act (1969), which requires logging companies to do three things before they can start felling trees: enter into an agreement with landowners; obtain a licence from the Commissioner for Forests (who is appointed by the Minister for Forests); and get extra permission for logging at 400 metres above sea level.

On paper, this seems to be geared towards empowering local communities to protect resources in order to make their villages sustainable. In reality, the Solomon Islands have been logged unsustainably for decades, in many cases with few benefits flowing back to the local communities.

The first court case

In 2009 Success Company Ltd rolled in its trucks and started logging an area known as Lot 1. KIBCA investigated the company’s actions, and found that while Success had a licence it hadn’t gone through all the required steps and had not obtained the permission for logging above 400 metres required by the Forest Resources and Timber Utilisation Act.

In July 2010, KIBCA took the bold move of filing an application with the High Court, seeking to restrain Success and its contractor from logging. In August 2010 Justice Chetwynd agreed to hear the matter and granted a temporary injunction that stopped the trucks and chainsaws.

According to Stephanie Price, an Australian lawyer who worked on the case, one of KIBCA’s most significant victories so far has been gaining recognition of its right to bring legal action against Success.

In the 2010 case, Success claimed that KIBCA “lacked standing” to make a claim because it was a group representing landowners and not a landowner in itself. The High Court rejected this argument.

“This was important because it paves the way for other landowner and environmental groups to challenge decisions that are contrary to environmental laws,” says Price.

Without this recognition by the judge, KIBCA would have been required to get official permission from the Attorney-General before it could “seek enforcement of public rights”. It had already sought this permission from the Attorney-General but been denied, so Justice Chetwynd’s decision was key to being able to move forward.

In November 2010, KIBCA was back in court making its case about the lack of proper permissions. It won the case, with Justice Chetwynd upholding his injunction against logging pending the granting of the proper approvals.

Yes, Minister

In the background, other things had been happening. In August 2010, Heinz Horst Bodo Dettke, who owns two-thirds of the shares in Success, was elected as a Member of Parliament and was also appointed Minister for Forests.

One month later, the Commissioner for Forests (who works under the Minister for Forests) granted approval for logging above 400 metres.

Then, in March 2011, the Director of the Environment granted Success a “development consent”. Success had already hired a consultant to conduct an EIA, as legally required, but the consultant spent just one day on the island making the assessment.

KIBCA was told nothing about these approvals. In June 2011 Prime Minister Danny Phillips dedicated all of the 20,000 hectares above 400 metres on Kolombangara as a special area for conservation, giving KIBCA a reason to celebrate. The feel-good declaration, however, lacked any legal clout.

Andrew Cox was working as a volunteer with KIBCA at that time and said that when the KIBCA board heard rumours that the approvals had been granted and that no one had bothered telling them, they were exasperated and suspected that it was “a sign of the same old practices that they were sick of, involving corrupt logging approval processes”. Cox travelled to the capital, Honiara, to find out what had happened, and was able to confirm to KIBCA that the approvals had indeed been granted.

KIBCA was furious. In July 2011 it filed an appeal to the Environmental Advisory Committee against the decision. That appeal is still languishing in a queue, waiting for the attention of the Committee, which has drifted apart and isn’t holding meetings.

Undeterred, in November that year KIBCA applied to the High Court for a judicial review and the quashing of both the Commissioner’s approval for logging over 400 metres and the Director of the Environment’s development consent.

KIBCA claims that the EIA doesn’t meet the requirements in the Environmental Act and that the Director of the Environment took into account “an irrelevant consideration” in making his decision, namely that the Commissioner had already given logging over 400 metres the go-ahead.

In August 2012 the Attorney-General, representing the Commissioner and Director, filed a defence denying any wrongdoing.

The wheels of justice are turning painfully slowly. In June 2014 the parties met to put before the court the agreed facts. According to Martha Manaka, senior legal officer with the government’s Landowners’ Advocacy and Legal Support Unit, there’s a chance that the court date may be set before the end of 2014.

Manaka stressed the importance of the case, saying that it “sets a precedent in terms of how companies deal with gaining ‘development consents’ for logging and other activities”.

But while she and KIBCA are hoping for success, winning the court case does not guarantee long-term protection. As Price points out: “Even if the case succeeds, the Director of Environment and the Commissioner of Forests could just grant those consents again.”

A more permanent fix

Ferguson Vaghi, the co-ordinator of KIBCA, is frustrated at how slowly the case is moving forward, but won’t give up: “If the court cases were fast and the companies were punished for not following the law, then the system would work. But that’s not how it is. The good thing about the case is that it has slowed down the logging activities and it has given us time to work on more permanent solutions.”

KIBCA’s new plan of action is to get the area above 400 metres designated as a National Park under the Protected Areas Act 2010, which would make it illegal for the Director and Commissioner to grant approvals for logging.

This is a long process, though, requiring the consent of all the landowners, and there are some people in Kolombangara who see “locking up forests” as akin to giving them away for no return.

As Vaghi explains: “It’s a local mentality that can be overcome by doing what we are doing. We are used to depending on the forest for almost everything, so if we are going to stop people from making money from the forest we have to find incentives and offer alternatives.”

This, he says, means finding other ways of monetising the forest, such as ecotourism, agro-forestry, honey production and other sustainable industries.

Ian Scales, whose PhD focused on logging and land politics on Kolombangara, is concerned, however, that the process of gaining approval from all the landowners will be difficult because there is an undercurrent of power politics, an attitude of elitism among the “big men” and a reluctance to cede power: “The competing narratives will make it hard.”

He explains that the nation’s current Prime Minister, Gordon Darcy Lilo, who hails from Kolombangara, is a big player who made part of his fortune from logging – including logging above 400 metres. Scales believes that Darcy Lilo is keen to take decisions on logging out of the hands of local chiefs and have them made in Honiara. Other influential people, such as Luma Darcy, are keen for Kolombangara to maintain its independence.

Despite these gloomy predictions, Vaghi seems pragmatically optimistic: “It’s not difficult; it’s just that money talks. When we can offer money, we get agreement. It’s taking time but we have money coming soon from the United Nations Development Program, and when that comes we will make more progress. It’s the way forward, as far as I can see.”

Back at the Landowners’ Advocacy and Legal Support Unit office, Manaka is getting her papers in order, preparing for a court battle in the next few months.

New Internationalist

Next article – Is this the end of Pearson’s Cape York “welfare trap?”

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