This is a motion filed by the Plaintiff Mr. Waqa seeking a permanent injunction order against the first Defendant and or its subsidiary Standard Concrete Industries for entering ITaukei (Native) Reserve land belonging to the Mataqali(Clan) Ulugai and clearing it for the purposes of constructing a road access.
The Defendant was granted a license to extract gravel from Wailiko River. In order to access the River, the Defendant entered into ITaukei (Native) Reserved Land belonging to the Plaintiff and the clan Ulugai and started constructing a road access for the purposes of gravel extraction.
The plaintiff claimed that the land required de-reservation before the granting of consent to use it as an access road. Further that the construction of access road towards the Wailiko River resulted in environmental damage over the iTaukei Reserve.
The Court held:
- The Plaintiff and owners of the land will be irreparably affected if their Native Reserve is exploited for commercial purposes without following due process. That there was no sketch or plan for a location of a road, indicating that the Defendant had no authority to construct a road from an undefined access road which was offered to them, to be used for the said project for transportation of gravel extraction. Without a defined road there cannot be a legally enforceable right to access;
- That if an injunction was not granted the Defendant may construct any road from any place including and not limited to the Native Reserve ignoring all other legal requirements and this needed to be restrained;
- The Defendant had yet to obtain a lease for the road access through due process after the fulfillment of an EIA and other requirements in law. The TOR for the EIA by the Ministry of environment did not include the impact of an access road and that if a Native Reserve is used for access it would not only be illegal but also pollute and destruct the environment irreparably;
- Defendant is a commercial entity and road accesses need to demarcated in a plan or sketch. Without a contract for use or proper concurrence of the relevant ministries no road can be constructed and or used for heavy moving vehicles for extraction and transportation of gravel.
An interim injunction was granted until further orders of the court to determine the originating summon.