Defendants apply to strike out Nawaikula’s Land Act amendment case

Counsel for the Attorney General’s Chambers Nazia Ali today applied to strike out a lawsuit by Niko Nawaikula who is challenging the legality of the iTaukei Land Trust (Budget Amendment) Act 2021, among other matters, that was passed late July in the Fijian Parliament during his absence.

Ali who appeared for the first and second defendants in the Fijian Government and the Attorney General’s Office filed the application on the grounds that there was no reasonable course of action, further submitting that concerned parties provide written submissions on the strike-out application.

Nawaikula was not in the Fijian Parliament when the legislation was passed. His seat was vacated by the Speaker of the House Ratu Epeli Nailatikau prior to the debate on Bill 17, after the Supervisor of Elections Mohammed Saneem removed his name from the Register of Voters because it did not match the name on his birth certificate. He was reinstated in the Fijian Parliament about three weeks later, at which time the legislation had been passed.

Nawaikula’s counsel Sevuloni Valenitabua Snr said to comply with the first and second defendants’ submission will only delay the case further taking into account the submission and responses timeline, that spans between 14-28 days at a time, that is usually provided to both parties.

Valenitabua Snr suggested that instead the court dealt with both cases together – the lawsuit by his client and the defendant’s strike out application – in order to expedite the matter “before it [referring to the TLTB Amendment Act 2021] is used more” stemming from their claims that the legislation is in breach of a number of laws including Fiji’s 2013 Constitution.

In considering both parties’ submissions, Chief Justice Kamal Kumar ruled that the strike out application is heard first, but reduced the submission and responses timelines in order to expedite the process.

Accordingly, he ruled that the defendants’ lawyers, including the TLTB counsel, provide written submissions by 15 November – seven working days from today, to which Nawaikula’s counsel will respond by 23 November. The defendant will then be given until 30 November to provide a response before the hearing in four weeks time.

The hearing is scheduled for 2.30pm on Friday, 3 December.

Nawaikula is suing the defendants on his own behalf and in a representative capacity on behalf of members of his mataqali – Mataqali Vilaca in the Yavusa Kama, Tikina Natewa in the Yasana Cakaudrove – in their capacity as landowners, seeking a declaration, among other reliefs, that the applicant’s rights as a landowner of itaukei lands were breached upon the introduction into Parliament of the iTaukei Land Trust (Budgment Amendment) Bill 2021 (‘Bill 17’) and its subsequent enactment.

The declaration sought by Nawaikula were that the amendment of the iTaukei Land Trust Board Act 1940, by the 1st, 2nd and 3rd Defendants, by introducing section 12(1A) through the iTaukei Land Trust (Budget Amendment) Act 2021:

  • was in breach of the owners of iTaukei lands indigenous and human rights as stipulated in Article 6 of the International Labour Organisation Convention 169 (“ILOC 169”) which was ratified by the government of Fiji on 3 march, 1989,
  • that it was done without prior consultation with and without the consent of the owners of iTaukei lands contrary to and in breach of section 12(1) of the iTaukei Land Trust Act 1940, the common law and the ILOC 169 and was therefore unlawful,
  • was a breach of section 28(1) of the 2013 Constitution of the Republic of Fiji (“the Constitution”) and therefore unlawful.
  • was a breach of section 29(1) and (2) of the Constitution and therefore unlawful.

It also sought a declaration that the voting procedure utilised in Parliament during the enactment of the iTaukei Land Trust (Budget Amendment) Act 2021 breached section 69(1) of the Constitution and Standing Orders 53 and 54 of the Standing Orders of the Parliament of the Republic of Fiji and therefore unlawful.

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