Story by Patricia Gil. Photos by Graham crumb
In 1980, when Vanuatu regained its independence, the constitution restored perpetual land rights to the ‘indigenous custom owners and their descendants’. Since then, Vanuatu has been trying to find a way to manage the concept of land leases better and more fairly, a slippery fish trying to find its place between the modern law and the many different rules encompassed within traditional kastom laws.
Following its commitment to the land reform and the recommendations made during the 2006 National Land Summit, the new legislation brought by Minister of Lands, Ralph Regenvanu, comprises two changes to the constitution, amendments to the existing Land Reform Act and Land Leases Act, the repeal of the Customary Land Tribunals Act and the new Custom Land Management Act. These changes marked a historic development in Vanuatu’s land laws.
Historical changes to the Constitution
The amendments to the Land Reform Act have removed the power from the Minister of Lands to sign unilaterally leases over government or customary land; a very welcome change that put an end to what has been for the last decades a complete disaster. Any leases must now go to the newly formed LMPC (Land Management and Planning Committee) for approval. Further amendments to the Land Reform Act also removed the power of the Minister to sign a lease over custom land when a dispute exists, without the agreement of the disputing parties.
The amendment to article 30(2) of the constitution now requires the Malvatumauri Council of Chiefs be consulted on any questions regarding land, tradition and customs in connection with any bill put before parliament, opening the way for interaction and cooperation between modern law and traditional kastom law. These changes have been widely welcomed and applauded overall for their positive impact. “It is written in our constitution that kastom law should be part of Vanuatu’s legal system but this principle has not always been upheld. This amendment will ensure its implementation,” Moli Torvakavat Tirsupe, President of the Malvatumauri Council of Chiefs, stated.
The new laws
The purpose of the new Custom Land Management Act and the amendments to the Land Reform Act are to implement a new process for identifying custom landowners, managing disputes and registering new leases over custom land. The outline of the new process is:
1. Custom land owners wishing to register a new lease will need to make the public aware of their claims through a notice that must be published through different media and locations for a period of 30 days.
2. After the required period, a meeting must be held in the nakamal/s which has jurisdiction over the land in question. A custom land officer must be present as an observer and to record the outcome of that meeting. The decision of the nakamal regarding the custom owner’s land claim must be made by consensus and in accordance with the customs of the particular area.
3. When a decision over the land ownership cannot be reached at the nakamal within 30 days, that is, if no agreement by consensus is reached, the disputants are invited to resolve the dispute by mediation.
4.If a decision is not reached by mediation, the custom landowners can try to resolve the dispute at the nakamal level for a further 30 days or take the dispute to their Custom Area Land Tribunal. The custom owners can also opt not to enter into mediation and go straight to the Tribunal, The Custom Area Land Tribunal is formed by three people: The chairperson of the Custom Area Council of Chiefs and two other people whose knowledge of custom is great who are nominated by the Custom Area Council of Chiefs.
Prior to this, a certificate of negotiation must be acquired requiring the submission of relevant information regarding the land to be leased and the purpose of the lease must be approved by the LMPC. The LMPC will have in its committee the Directors of the Lands Department, Environment Department, Cultural Centre, a senior planner and a senior provincial planner.
Returning to the nakamal
The new legislation has been both praised and criticised on different aspects but welcomed overall. The implementation of a meeting at the local nakamal, in which the whole community can be present when a decision regarding land ownership rights of individuals or groups is made, was an effort to move closer towards the traditional communal view of land and decision making.
As Joel Simo, CEO of the Land and Language Desk at Vanuatu Cultural Centre explains, the notion of ownership of the land is an introduced concept. “Before European settlement, land was not so much ‘owned’ as it was ‘held’ under the care of those in charge of its administration for the betterment of the village or tribe.” Joel explains. Through a complex system of allegiance and deals made over time to preserve peace between tribes and prosperity within communities, rights to use the land and access to water, were given in exchange for benefits such as produce and goods. Because of this traditional view of land administration and its uses, whether any money acquired by the sale of a lease should belong entirely to the custom land owner or be administered in the community, is unclear. Custom laws also vary from area to area, adding to the complexity. Justice For The Poor 2012 Discussion Note ‘Towards More Equable Land Governance in Vanuatu: Ensuing Fair Land Dealings for Customary Groups’, states: “The failure to adequately recognise and enforce group landholding rights remain a critical factor in the number of disputes over land and the benefits derived from lands leasing”.
To give the community back the role held in traditional kastom, Regenvanu drafted the new laws to require community decision-making. “These changes have been welcomed in the outer islands where decisions that affect villages are still being taken to the nakamal and dealt with at a community level,” explains Regenvanu. The new laws were drafted in conjunction with the nineteen recommendations made by the Malvatumauri National Council of Chiefs, “We believe the new legislation is a step closer to kastom and are happy that these changes have finally taken place,” says Malvatumauri’s Council president.
The requirements needed to hold this meeting however, were considered by some to be too harsh and unpractical. Levy Tarosa, registered valuer and the Chairman of the Vaturisu Land Reform Commission explains: “The problem is the quorum that is required for the meeting to take place. In small villages, this may work fine, however in places like Efate, this is unrealistic. Imagine for example, villages of the size of Mele that would need almost a thousand people to attend for the meeting to take place. Everyone at that meeting will also have to agree unanimously with that decision. This is simple impossible,” Tarosa explains. Minister of Lands, Ralph Regenvanu, recognising the difficulties imposed and following the now required process of consultation with the Malvatumauri Councils of Chiefs, recently passed amendments to the laws in Parliament which remove the requirement for a quorum for the meeting to be able to take place.
Land for us has no value because land is everything.
Historical changes have also been implemented in the way disputes are resolved. Under the new laws, a land dispute can no longer be taken to the courts. If an agreement is not reached by consensus at the nakamal, the custom land owners can follow mediation or take it to the Custom Area Land Tribunal. There is criticism however, surrounding the issue of the final decision at the Land Tribunal resting on only three people and the possibility of unfair decisions. Regenvanu thinks that eventually, the process itself will bring about the strengthening of local kastom so that its rules will be upheld. “We wanted to take the process of custom land lease registrations back to kastom, back to the nakamal, so that any dispute can be resolved following the area’s kastom laws. This itself, will also help to strengthen kastom,” Regenvanu explains. Malvatumauri’s president believes that once land disputes are being dealt with within the local nakamal, very few disputes will need to be taken to the Custom Area Land Tribunal. “If the nineteen recommendations in our road map are properly implemented, the new land laws will work with no problem,” Malvatumauri’s President Moli Torvakavat Tirsupe said. Some of the objectives listed in these recommendations are to identify customary boundaries and authorities, strengthen the customs that protect the resources of each custom area and write down all kastom laws. “The only problem for the Council is that we don’t have the necessary resources to implement these recommendations properly,” said Moli Torvakavat Tirsupe. Malvatumauri thinks that although the laws are closer to kastom, the process and requirements for a land lease are still impractical. “A man first needs to put a notice on the radio, but there may be no radio reception where he lives. He also needs to put a 2x1m billboard on the land: how is he going to transport this? The more that is required, the more money and resources the custom land owner will need,” said the Councils’ president. The Customary Lands Tribunal Office has been re-named the Customary Land Management Office, and will be the main agency implementing the new requirements in collaboration with the Malvatumauri Council of Chiefs. “The process and requirements are harder under the new laws. However, now we will be in charge of recording all claims which means that we will have proper records,” explains Alicka Vuti, National Coordinator of the Customary Land Management Office at Malvatumauri.
A different relationship with the land
Perhaps at the core of the administrative issues involving the land debate lies the Melanesian relationship with the land. Joel Simo, also an active member of MILDA (Melanesian Indigenous Land Defence Alliance) believes that the first mistake is the introduced practise of trying to turn land into a commodity. “When we turn land into a commodity, we lose the traditional connection to the land and with it, the Melanesian belief that land belongs to the community. As long as we continue to register leases, the land will be given a value and we will continue on the path of land becoming an individual’s possession, leaving the majority of the population excluded from any gain. Our culture, traditions and spirituality are all linked to the land. If land becomes a private commodity, everything that unites us as a people will be lost. Land for us has no value because land is everything,” Joel explains.
In the Lelepa Declaration by MILDA conference held in March 2014, it is stated: “Land is our mother and the source of life for our people. Land secures life, fosters and strengthens relationships that sustain our society. It embodies the connections to our past, present and future and therefore sustains everything we aspire to (…)” It is also declared: “3. We oppose any form of alienation of land and seas from customary land owners, whether by outright sale, leases or acquisitions which remove landowners capacity to effectively control, access and use their land and sea.”
Selwyn Garu, Chief Viratabe from Pentecost, thinks that the new land reform is a good step forwards but again believes that the top priority is to protect the land. “Tomorrow I will leave Port Vila to go back home to Pentecost. There, in my village, I will go to my garden if I feel like it. And if I don’t, I will spend my day lying underneath a mango tree and playing with my children. I may feel like going fishing or I may sit and ‘storian’ for the afternoon. As long as we have our land, we will be able to have this life. If we lose our land, we will be working on the street. We will be like the Western World. Some people call that ‘development’. I don’t believe that this form of development is good,” he says.
Unfortunately, life is not always rosy for people in the outer islands who many times, have to see their children die for lack of money to secure proper healthcare. There is increasing migration from rural areas into the ‘big city’ as people look for work to support their family ‘back in the islands’. Creating jobs for the rising numbers of skilled and unemployed population needs investment, and investment needs security and land to rest upon.
The receiving end
In the custom land debate not only those leasing the land are involved – on the other side are the buyers; not only foreigner investors but also, increasingly, Ni Vanuatu who have no land to call their own. While it is widely believed that after the period of a lease is finished, the land returns to the custom land owners upon payment from the land owner for improvements made to the land, this is actually not the case. As it stands by law, unless a clause has been added to the lease that declares this to be the case, all land returns to the custom land owners without payment for any improvements and infrastructure being required. Investors may be able to negotiate a new lease but there are no laws or guidelines in place as to how this would be done. When many leases issued in the 80’s start to expire in the coming decades, if the matter is not given a definite framework under the law, it could create economic chaos and a halt in new investment, as business lose their worth and conflict between different parties, including custom owners themselves who will need to renegotiate their claims. As land becomes more of an individual possession, the repercussions for Vanuatu’s female population can also not be understated. It is relevant to note that according to data from the Vanuatu National Leasing Profile study released in May 2012 by Justice For The Poor, out of the 13,815 registered leases up to 2010, not one had a women’s name as a custom land owner. If land is everything, then in a not too distant future, Vanuatu women will have nothing.
Land in Vanuatu is not an easy subject to tackle and under the direction of Ralph Regenvanu, the current laws seem to be moving towards equity and in line with kastom. This should not be viewed as the end step but perhaps the start of a process. Vanuatu is a country straddling its traditional beliefs and way of life and the modern, westernised approach. It not only follows two legal systems but, within traditional kastom law, a myriad of systems and different rules apply to each area. The people of Vanuatu are increasingly aware of the price they will pay for western comforts and what is at stake with any gain.
To take a polarized position of development-versus-non-development may not be helpful as if a river is not endlessly flowing, it dries. Between extremes, balance rest in the middle and managing land and the direction that ‘progress’ takes is achievable and could ensure a happy compromise between progress and investment and the traditional environmentally sustainable Melanesian way of life. This is ultimately called paradise. The rest of the world may have failed to remain part of nature but Vanuatu, because of its size, its climate and where it stands at this present time in history, has the opportunity to learn from other countries’ mistakes, from the failure of an economy of growth, and build a nation where humans live in nature but can also receive proper healthcare, food, education and information to enrich their lives. This will need the conscious effort of not only the governing channels but also the community, working together and placing communal gain before individual gain. As much as the new laws have been praised or can be criticised, it is up to each community to achieve the balance between preserving their land and creating investment possibilities and to ensure that the whole community benefits.