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Fiva v Free Wesleyan Church of Tonga

Pays/Territoire
Tonga
Type de cour
Nationale - cour supérieure
Date
Fév 14, 2014
Source
UNEP, InforMEA
Nom du tribunal
Supreme Court of Tonga
Juge
N. Tu’uholoaki
Numéro de référence
CV 8 of 2013
Langue
Anglais
Sujet
Eau
Résumé

Village well in Ha’asini is situated on the boundary of an open area of land described as a ‘water field.’ On the water field was a cooperative store, bank and a residence. All of these have septic tanks. Most households in Tonga rely on septic tanks.

Under the Public Health Act 2008 part 5 the Minister is obligated to determine suitable sources of water for public supply and to take any steps necessary for ascertaining the ‘sufficiency and wholesomeness’ of the water supplies. Furthermore s 61 states that the Minister must advise the village water committee on all measures required to ensure the water used in its area is safe for drinking.

The village of Ha’asini has a well established water committee under the Water Supply Regulations 1963 which was created under the Public Health Act 2008. The first plaintiff is Chairman of the Committee and several of the other plaintiff’s are current and former members of the committee.

The water field historically was part of the villages as residences for 6-7 families. In 1963 there was an outbreak of Typhoid in the area and the water field was evacuated.

This evacuation was done on the recommendation of the WHO. The water field has a freshwater water table approximately 42.56m below ground. This table is replenished by rainwater. The risk of polluting this groundwater is increased the more toxic liquids are discharged into the area. The closer the discharge to the well the higher the likelihood the well would be contaminated.

Since the evacuation of the water field in 1963 it has been left undisturbed. Maintenance of the field has been taken over by the Committee and it has mostly been used for sports and fairs.

In 2012 during a village meeting the prospect of the Church being granted land for building a new residence for the Church Minister was discussed however the water field was not mentioned.

A 50-year lease was granted two weeks later by the Ministry of Lands on the water field. Construction began for the residence amid strong opposition from the village residents. The Court and the Chief Justice granted an injunction against the use of a septic tank on the property.

Arguments:

Plaintiffs- argued for the removal of the new residence as it had been constructed against their will on land that needed to be left undisturbed in order to prevent another typhoid outbreak.

Defendant- the Defendant argued they had a perfectly valid lease over the land, the proceedings had been brought in the wrong court as they should have gone to the Land Court. There were other residences adjacent to the water field that were closer to the well than the new house which were considered not to pose a threat to health.

Held:

The Court considered that considerable money had been spent on the residence by the Defendant, a charity however it held that the use of the house was ‘incompatible with continued integrity of the water field and the continued supply of potable water to the neighbouring communities.’

Expert witness also attested that it would not be feasible for the tank to be moved outside of the boundary, to a place of safe operation.

‘The granting of a permanent injunction preventing the use of the septic tank in its present location does not necessarily mean that the new house has to be removed.

 

(Summary provided by Eva Sheppard from the Queensland University of Technology)

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