By Ofani Eremae
When Malaysian logger Richard Kong Sing Ngea pleaded guilty in December 2020 to the illegal harvesting of Tubi trees in Solomons’ Isabel Province, tribal leader Wilson Tohidi was thrilled.
Ngea’s admittance of guilt, Tohidi believes, should prompt the Solomon Islands Government to seize the illegally felled logs and return them to landowners.
His tribe, Tohidi insists, is the rightful owners of the logs.
As expected, Government acted promptly to seize the 10,000 cubic metres of Tubi logs that lined the Korona log pond on the resource-rich island of San Jorge on the southern tip of Isabel.
But to Tohidi’s shock, after taking hold of the logs, the Government turned around that gave them back to Ngea’s logging company, Sunrise Investment Ltd, to export on its behalf.
The decision infuriated Tohidi and his tribesmen, who felt betrayed by a government that supposed to serve their interests.
“It’s a betrayal by any government in the highest order,” Tohidi, who is also chairman of the San Jorge Island Resource Owners Association Trust Board, said.
“As landowners, we have the first right of claim to those logs. They are logs that were illegally cut down from our land,” he added.
“How could the government seize our logs and then give them to the very person who was trying to steal them at the first place?
“Where’s the justice and the fairness? Whose interest is this government serving?
“No wonder they refused to intervene when I first alerted them about the illegal felling.”
With no one to turn to, Tohidi and his tribesmen took to the Solomon Islands High Court and filed a case challenging the government’s decision, while staking their right over the Tubi logs at the same time.
Deliberate & illegal felling
Sunrise Investment Ltd, a Malaysian logging company notorious for its lack of respect to local landowners, was issued a five-year licence in 2018 to operate on Korona land on San Jorge.
This is land owned by Tohidi and his tribesmen.
But Sunrise’s logging licence does not include the felling of Tubi, scientifically known as Xanthostemon, a rare and endangered tree species, which under local environmental laws, is export restricted.
The company’s licence only allows them to log other commercial species.
However, after cutting down all the loggable tree species on Korona, Sunrise started felling the restricted Tubi trees.
Despite complaints and reminders from the landowners and the Isabel Provincial Government, Sunrise failed to listen.
Tohidi took the next step by writing to Government authorities in Honiara, requesting they step in and stop the illegal felling.
After three months and with no action coming from the Government, Tohidi and his tribesmen decided to stop the illegal Tubi harvesting by going to court.
By this time, according to Tohidi, around 10,000 cubic metres of illegally felled Tubi logs, estimated to be worth tens of millions of dollars, were lying inside the Korona logging camp.
Besides seeking damages from Sunrise, Tohidi and his tribesmen obtained immediate court orders that not only put a stop to the illegal felling but also prevented the Asian logger from shipping the logs out from Korona.
Tohidi addressed his letter to Dr Culwick Togamana, the then Minister for Environment, Climate Change, Disaster Management and Meteorology.
The same letter was copied to the Director of Environment, the Attorney General and other relevant state authorities.
Togamana, a former University of the South Pacific (USP) lecturer, responded by instructing relevant officials to act on Tohidi’s letter.
But for some unknown reasons, no one took any action to stop the illegal Tubi harvest.
“We just cannot believe that these government offices chose not to intervene when I brought the matter to their attention,” a highly disappointed Tohidi said.
“Our suspicion was that someone up there was dictating the situation in favour of the Malaysian logger,” he added.
“I mean here is a situation where a logging company that does not have a licence to fell Tubi, yet it is openly doing it in front of everyone without any action from the Government.
“It was simply unbelievable.”
When contacted on the matter, Attorney General John Muria Jnr claimed his office was never informed.
“The Attorney General acts on instructions,” Muria said,
“Unless the Attorney General is instructed, there is nothing we can do,
“A request must be given to the AG from any ministry.”
Plot to seize the logs
Tohidi and his group said they found Togamana helpful, pointing out that the minister was sympathetic to their cause.
What they didn’t know was the Office of the Prime Minister and Cabinet is plotting its own plan on how to deal with the logs.
As debate around the Tubi logs rages, Togamana found himself suddenly removed from the Ministry of Environment and shifted to the Health portfolio.
Prime Minister Manasseh Sogavare took the decision while Togamana was out in the province of Malaita on official duties.
Government gave no reasons for Togamana’s removal, except that “it was a normal reshuffling exercise”.
However, those closely following the Tubi issue believed Togamana’s removal was due to his sympathetic stand with Tohidi and his group.
Asked to comment on his removal, Togamana said the decision was the prime minister’s prerogative.
Then Health Minister, Dickson Mua, was brought in to replace Togamana.
Within weeks, and much to Tohidi’s surprise, Mua used his ministerial powers and forfeited the illegally felled Tubi logs to the state.
He took the decision despite the case over the Tubi logs was still active before the court, and that the High Court had already ordered the logs not to be shipped out of Korona log pond.
Also, Togamae Lawyers, the law firm representing Tohidi and his group, had earlier wrote to Mua, seeking the minister’s indulgence that any forfeiture action must be made known to his client.
That letter was also copied to the Attorney General and the Solicitor General.
Although Mua had access to legal advice that he could consult on the state of the Tubi logs, he went ahead and seized the logs.
He then issued an order for Sunrise to sell them “on behalf” of the Government.
Logger with a track record
When Sunrise’s Ngea pleaded guilty to the illegal Tubi felling in the Honiara Magistrate’s Court in December 2020, he was ordered to pay a fine of SBD$50,000 (USD$6,232), the maximum penalty for such an offence.
He found little difficulty paying the fine. In fact, he paid it off at the rising of the court.
But this was not the first time Ngea and his Sunrise company were penalised.
Towards the end of 2020, the Foreign Investment Division ordered Sunrise Ltd and two other Malaysian logging companies operating in Isabel Province, to each pay SBD$1,000,000 (USD$124,150) fine for violation of their investment licences.
Sunrise has since pulled out its operation on Korona.
It has also lost its membership with Solomon Forest Association (SFA) over its illegal action on Korona land.
SFA president Johnny Sy said they took action against Sunrise, and another Malaysian logging company called Mas Solo Investment Ltd, after assessing the illegality of their logging activities.
Sy said their action paves the way for the Ministry of Forestry to cancel the felling licences of these two companies.
The office of the Commissioner of Forest has not responded to questions sent to them for comments about the illegal actions of Sunrise and Mas Solo.
Latest check in the Government’s Company Haus registry also confirmed Sunrise is now deregistered due to its failure to submit its annual return dues.
Minister Mua reshuffled again
Not long after he used his ministerial power to seize the logs, Mua was reshuffled again to the Ministry of Forestry only after three months.
Prime Minister Sogavare then brought in the late Titus Fika, a government backbencher, as replacement.
Like his predecessor, late Fika appeared to have come in with a set agenda.
As soon as he assumed responsibility, he issued an executive order for the sale of the Tubi logs.
He also directed the Director of Environment to issue a special export permit for Sunrise to sell the logs.
Under the sales arrangement, Sunrise Investment Ltd would receive 60 per cent of the proceeds, while Government would only collect $500,000 in goodwill payment plus 25 per cent in duty.
When the Island Sun newspaper exposed late Fika’s export sale order in a front-page article published in February last year, the minister was quick to defend his decision.
In a statement the Office of the Prime Minister issued on his behalf, late Fika stated:
“The truth of the matter was that on 21 December 2020 after taking over, I issued an executive order for government bodies to facilitate the export by Sunrise Investment Ltd.
“The reason for this is because the Tubi logs were already vested on the state and become the property of the Solomon Islands Government.
“Funds are needed by the Government to conduct its business.
“As a responsible minister I have a duty to the Government to ensure government property is disposed of and funds paid to the Government.
“The choice to appoint Sunrise Investment Ltd is many, which outweighs the fact that it was the illegal logger.
“Primarily, Sunrise Investment Ltd has the capacity to quickly export the logs for the Government.
“The decision to appoint Sunrise Investment Ltd was seriously considered and we stand by it.”
Late Fika and the Government may have stood by their decision to seize the logs from Tohidi and his group and gave them to Sunrise.
But Solomon Islands High Court Judge Justice John Keniapisia said the decision is not only immoral but an “intervention in the court process”.
Judge hits out at ministers
He subsequently declared the minister’s action illegal and gave the landowners the right to sell the logs.
In his ruling of the case Tohidi and his group filed against the government action to seize the logs, Justice Keniapisia hit out at Mua and late Fika over their decisions to seize and logs and gave them to Sunrise Ltd.
“Mua’s decision to seize the tubi logs while a case the landowners filed is still before the court amounts to ‘interference in the court process,” Keniapisia said.
He pointed out that the Government has touched on and interfered with this case three times – first Mua’s forfeiture order, second Mua’s sale order condition and third Fika’s executive sale order.
Keniapisia also pointed out that the owner of Sunrise Ltd, Richard Kong, had pleaded guilty and fined in the Magistrate’s Court over his illegal action.
Yet, the judge said the Government saw it fit to give Kong the right to sell the logs and receive 60 per cent of the sales proceeds.
Keniapisia said the law was very clear on such an issue.
Law cannot assist a criminal
“The law will not lend its aid to a man who finds his cause of action upon immoral or illegal act,” he stated.
“Or the law will not lend its assistance to enforce something that is unlawful and contrary to public policy – in this case felling Tubi without a permit is the unlawful act,” he added.
“Public policy rational here is that investors/people should not be encouraged to tamper with the law, knowing that Government and the Court will be on their side to somehow get away and benefit from tampering with the law.”
He said the effect of the ‘sale order conditions’ by the Government is to assist Sunrise to recover its operational cost.
“In effect, the minister is employing a formula of 60 per cent operation cost to investors, which is normally applied by courts to benefit investors, in cases of illegal operations, where there are claims for trespass and damages.
“But Court would normally attach conditions to the 60 per cent.
“One condition is there must be expert evidence to verify the 60 per cent cost.
“Whilst the minister can assist a lawbreaker to benefit from the breaking the law, the Court cannot.
“Nothing more, nothing less.
“The fundamental reason is that the court is the custodian of the law.
“The minister may be a law and policymaker, or the implementer of law and policy but not necessarily or primarily a custodian of the law.
“As the custodian of the law, I will say, I cannot or Court cannot assist Sunrise to benefit from breaking the law.
“If I do, I will be opening the flood gates because investors will know that they can break the law and can still get their share from breaking the law.”
Criminal logger to benefit, not state
Furthermore, Justice Keniapisia said to allow Sunrise to sell the Tubi logs on behalf of the Government and get 60 per cent of the proceeds does not make sense.
“If it is true that the Government owned the Tubi and only engaging Sunrise to sell them for and on behalf of the state, then what is there to show for in terms of monetary benefit to the state from the sale order conditions?
“The sale order conditions do not benefit the state, in terms of money earned into the public wallet.
“The 25 percent to the state in the sale order conditions is a statutory due – tax. Ministers do not have to order that. It is a statutory obligation of investors.
“But that is really a peanut share if you consider the total proceeds from the sale ($9,000,000).
“And goodwill may be inapplicable, where the state is said to own the Tubi.
“If the state owns the Tubi, why is it paying itself goodwill again? Does not make sense.
“The only benefit is to Sunrise, the 60 per cent operational cost, based on a standard court formula, but without verification like the Court would normally do.
“So I can imply that where there is not monetary benefit to the state, or minimal monetary benefit only, what the minister is really trying to do is to assist Sunrise – a law-breaker – to benefit from breaking the law.
Again whilst the minister may be free to do that, the Court is not free to do that.”
Justice Keniapisia pointed out that Mua and late Fika’s interference was “quite deliberate”.
“Deliberate because the ministers knew that a dispute on the illegal harvest of Tube was pending before the court.
“Yet they decided to take away the very subject matter (Tubi) of the pending dispute.”
In dismissing the ministers’ orders, Justice Keniapisia gave Tohidi and his tribesmen the right to sell the logs under an arrangement to be made with their lawyer.
Court decision welcomed
“This was exactly the decision we have been waiting for,” an elated Tohidi said.
“It is a victory for us landowners,” he added.
However, Attorney General Muria said the case the landowners took in the High Court against the Government’s forfeiture of the Tubi logs was done without the knowledge of the state.
“The Attorney General has appealed the court decision,” Muria said.
“The position of the Government is that because of the forfeiture, the State owns the Tubi and not the landowners.
“And since we have appealed the High Court decision, I will not comment any further.”
Sunrise had also successfully lodged an appeal in the Solomon Islands Appeal Court last November, preventing Tohidi and his group from exporting the Tubi logs as per Justice Keniapisia’s order, pending the appeal.
The Court of Appeal is expected to hear the arguments over the ownership of the logs in its first sitting this year.
But Tohidi feared the economic value of the logs will diminish if they remain at the Korona seafront.
“That’s our fear. This is why we are asking the Government to allow us export the logs since we already have a buyer.
“But this government is not helpful. It continues to block our efforts to export the logs,” Tohidi said.
He said they’ve already secured a buyer, YangZhou JianPinYuan Wood Industry Co Ltd, who has offered to pay the logs for SBD$17.5 million.
On the other, the Sunrise Investment, which the Government wants them to export the logs, is selling them for only $9 million.
“So you can see that landowners who owned the logs will benefit more if we sell the logs ourselves compared to what Sunrise has offered the government,” Tohidi said.
“In fact, we were already in the process of loading the logs last November on board a vessel for export when we received orders from the Attorney General to stop the loading.
“This is how far this government could go to stop our efforts.
“I don’t know who this government is really serving.
“As resource owners, we have the right over the logs and the government should assist us in exporting them,” Tohidi said.
Meanwhile, environmental activist Lawrence Makili, who has been closely following this case and other logging disputes in the country, said it was a shame to see the Government siding with a foreign logger when they should be standing up for the people of this country.
“The ministers’ actions and that of the government clearly show they care more for their logging friends than resource owners.”
Makili calls for the cancellation of the logging licence of Sunrise and other loggers who deliberately violated the country’s laws, and deport their owners.
“Let’s not allow these people to play around with our laws.
“A strong message needs to be sent out to these loggers.
SOURCE: ISLAND SUN/ PACNEWS