The iTaukei Lands Act (Cap 133) provides under sections 6, 16 and 17 that disputants over proprietorship or boundaries of customary lands and headship of communal units such as the mataqali may apply to the iTaukei Lands Commission for resolution of their competing claims. This is in the event they are unable to resolve their dispute in the traditional way of direct consultations and consensus. The Act further provides that the party aggrieved by the decision of the commission has the right to make an appeal to the Appeals Tribunal.
This article is in response to enquiries by many iTaukei about what happens after the Tribunal has given its ruling. This is because of the stipulation under Section 7 (5) of the Act that: “Decisions of the Appeals Tribunal are final and conclusive and cannot be challenged in a court of law.” This provision in a statute is commonly referred to as an ouster or privative clause.
So the specific question is whether the losing party is effectively barred from applying for judicial review of the Appeals Tribunal’s ruling?
Only the courts can decide
The simple answer is that only the courts can make a determination of whether this privative clause has effectively ousted the supervisory jurisdiction conferred upon them under section 16 (c ) of the 2013 Constitution. This is the jurisdiction to review decisions by statutory appeal authorities such as the Appeals Tribunal under the iTaukei Lands Act.
The 2013 Constitution, as Fiji’s supreme law and in accordance with its distribution of governing powers among the three branches of government, has vested in the courts the exclusive authority to interpret the meaning of a statutory provision, based on the principles of constitutional and statutory interpretation set out in Section 3 of the Constitution.
However, as general procedural guidelines one can say that:
* no one can stop the aggrieved party from a decision by the Appeals Tribunal from lodging an application to the High Court for leave to submit an application for judicial review of the tribunal’s decision;
* the right to make this application derives from his or her rights under section 16 (1) (a) (b) of the 2013 Constitution to executive or administrative action by statutory or public bodies “that is lawful, rational, proportionate, procedurally fair, and reasonably prompt” and also “to be given written reasons for the action”;
* the application must clearly set out the substantive legal grounds for the requested judicial review; and
* the application to the High Court must be made in accordance with procedural requirements for JR in the High Court rules.
It is then for the High Court to make the critical determination as to whether the applicant has an arguable case in relation to the legality of the process followed by the Appeals Tribunal in arriving at its decision, and if so, and by virtue of that, whether its supervisory jurisdiction remains and has not been ousted.
Case judgment illustration
Within these procedural guidelines, how have the courts in Fiji interpreted this ouster/privative clause?
This is well illustrated In the case of State v Native Lands Appeals Tribunal, ex-parte Akuila Raibevu FJHC 556.
The applicant, Raibevu, applied to the High Court for leave to submit an application for judicial review of the decision dated November 6, 2008 of the first respondent, the Native Lands Appeal Tribunal.
The tribunal had quashed the decision dated June 6, 2005 of the Native Lands Commission in which the latter had decided to award the title of turaga ni mataqali of the Yavusa Matanikorovatu to the Tokatoka Vunibico with the Raibevu family, following the death of Jone Tubuto.
In his application to the High Court, Raibevu submitted the Appeals Tribunal had acted ultra vires and in excess of its jurisdiction, that it took into account irrelevant considerations and failed to take into account relevant considerations, that the tribunal concluded its hearing with insufficient evidence, and that the tribunal was biased against the Raibevu family and had pre-determined the outcome of the appeal.
At the High Court’s direction, the parties presented submissions on the issue of whether the ouster clause in section 7(5) of the Native Lands Act applied to this case.
In his judgment, delivered on July 28, 2010 Calanchini J explained that Fiji’s superior courts had laid down guidelines in the following appeal case rulings.
In Ratu Jeremaia Natauniyalo v Native Lands Commission and Ratu Akuila Koroimata (1998), the Fiji Court of Appeal held that the principles established by the House of Lords in Anisminic Ltd v Foreign Compensation Commission are part of the common law of Fiji. These principles are:
* the courts do not disregard the preclusive clause;
* however, if a decision has been made ultra vires (without jurisdiction) it is not a legally valid decision and therefore the court retains the jurisdiction to examine it under JR;
* such clauses by their nature can only relate to decisions by a tribunal within its prescribed field of operation under its founding legislation; and
* the clause would apply if action by the tribunal is within its prescribed field or area of operation.
In Ratu Akuila Kubose v The State, the Appeals Tribunal and the Attorney-General of Fiji , the Court of Appeal:
* Observed that the effect of section 7(5) of the Native Lands Act is that decisions of the tribunal are unimpeachable provided they are valid decisions, reached in accordance with the principles of natural justice;
* held it was satisfied that material placed before the judge at first instance showed that the appellant had been denied procedural fairness;
* not only granted leave but also allowed the application for JR; and
* directed a re-hearing by the Appeals Tribunal of the applicant’s appeal, and this was to be in conformity with its reasons, and with the tribunal’s membership to be differently constituted.
Calanchini J said it was clear from the above rulings that “even if faced with a privative clause, however worded, the court retains its supervisory jurisdiction when it is claimed that the decision-maker has exceeded his powers or jurisdiction and when there has been a denial of natural justice in the form of a lack of procedural fairness or when bias is alleged.” (p.6)
Calanchini J held that the court retained its jurisdiction to determine the application for JR before it. He allowed Mr Raibevu’s application.
Conclusion
From this case illustration, one can generally conclude that the courts would respect an ouster clause if an appeals tribunal acted within its statutory powers and fully observed the rights of every person to executive and administrative justice as defined in Section 16 of the 2013 Constitution. However, where the appeals body is adjudged to have acted outside, or in excess, of its jurisdiction, the courts may intervene on the ground that the appeal authority has not actually made a lawful decision.
Likewise, the appeal body’s decision may be deemed to be unlawful if it exercised its discretionary powers irrationally, unreasonably, on irrelevant considerations, in bad faith and with an improper motive. If it failed to observe the requirements of procedural fairness and to provide written reasons for its decision, these would be further grounds for the courts to declare the decision to be unjustified and unlawful. Consequently, the High Court may quash the decision, declare it to be null and void, and require that a fresh decision be made, taking its findings into consideration.
In judicial review, the High Court’s role is confined to examining and determining the legality of the process followed by the decision-maker. It is not concerned with the rightness or correctness of the decision. This latter is the sole responsibility of the original decision-maker and the appeals tribunal or authority.
In the ultimate, an application for JR will be determined on the facts and circumstances of each case.
* Jioji Kotobalavu is a graduate in law and an academic researcher on indigenous rights issues. The opinions expressed in the above article are his own and not of this newspaper.
