New Vanuatu laws strengthen role of custom in land deals

Transcript

New legislation in Vanuatu has strengthened the role of customary institutions in determining land ownership, and taken away the power of the Lands minister to issue land leases.

The legislation, passed in parliament late last year, followed an extensive consultation process around Vanuatu where public concern has been growing for years over issues relating to the alienation of ni-Vanuatu from customary land.

The legislation was driven by Lands Minister Ralph Regenvanu who told Johnny Blades that
the formal court system will no longer have the jurisdiction to determine ownership of customary land.

RALPH REGENVANU : That's been a big issue in Vanuatu where lawyers and courts have spent a lot of time and people have given lawyers a lot of money to try and determine ownership of land; whereas the founding articles of the constitution says the  rules of custom shall determine the ownership of land. So an amendment was made to a subsequent article to say that courts have no jurisdiction to determine ownership of land according to the rules of custom. That essentially means that ownership of land cannot be determined in the courts anymore, it has to be determined in a customary institution by custom and parliament can designate certain institutions to be customary institutions. That paved the way for  the new Customary Land Management Act which was passed in December. The main part of this was it sets out rules and procedures whereby nakamals - which are traditional institutions that exist throughout Vanuatu, like meeting places or maraes - make determination of customary ownership. And then there's a second level. If the determination can't be made at the nakamal level, the second level is a custom area land tribunal which is nominated by the chiefs from that customary which means an area with one language and one culture, set at a second level which is a land tribunal of the elders or people of that custom to determine ownership if there's an appeal from the nakamal based on process not being followed, also if the petition can't be determined at the nakamal level. There's also a third level in the Customary Land Management Act which is the island court land which is where appeals relating to process, where improper process has been followed, customary rules not being followed, applications can be made for judicial review to the island court land which can then say, yes, the process wasn't followed, and put it back down to either the nakamal or the custom area land tribunal where the application for judicial review came from. But all land determinations can't go outside that realm of those three courts. There was a second amendment which concerned the national council of chiefs, and the amendment was basically to ensure that any bills presented in parliament which are to do with land have to pass through the national council of chiefs first.

JOHNNY BLADES: So the Malvatamauri (national council of chiefs) have the over-arching power on that?

RR: No, they have to be consulted. They don't have to approve, they have to be consulted, they have to give their views before ti comes to parliament. We just hope it provides an extra level of scrutiny of any future changes to the land laws.

JB: And what about some of the problems in recent years with the performance of Lands Ministers, have these new law changes taken away control of land sales and so forth from the Lands Minister?

RR: Yes, the changes in the laws now mean that the Minister of Land no longer has the power to unilaterally approve any dealings on land. If the dispute is in the process of being resolved and it looks like it will take time, it is possible for all the disputing parties to agree for the lease to be issued, that's another option. But the Land Minister no longer has the unilateral power to issue leases where custom owners haven't been identified or they don't agree. Then there's a second level as well which is the Land Management Planning Committee which is a new committee which previously has been operating as an administrative body within the land administration but it was never a legal body - it always existed outside the law - so we've now legalised that and made it that every land dealing has to be approved by the Land Management Planning Committee. They have to endorse any applications to lease customary land before it goes to the process of identifying custom owners, just to ensure that it's a development that Vanuatu wants. So the people on the Land Management Planning Committee are an independent chair who must not be a public servant, and then the director of the Environment Department, the head of the Vanuatu Cultural Centre, the principal physical planner for the country, director of the Lands Department, and a planner from the province or municipality in which the land is located.

JB: And just harking back to the customary stuff though, is it open to complications with ascertaining the correct customary land owners in some cases or are there enough mechanisms to make sure that this goes right?

RR: Well I think the big issue over whether the laws will work is that issue. It's whether the customary institutions have the capacity to do this. That was probably the most controversial aspect of these bills. In some places they thought that the requirements for determining customary ownership at the custom level couldn't be met because for various reasons... divisions in the community, people not knowing the custom, the fact that the custom laws were not written down... so that was a major concern. In some areas it's going to be a lot easier, and in some areas, not so easy, particularly Efate where we have a situation where all the major villages in South Efate all have disputed chiefs, they have two or three chiefs disputing the title of chief, so in those places you don't even have one nakamal, you have at least two nakamals. So we are going to be spending a lot of time this year doing awareness about how the laws are supposed to operate, getting more views on them, possibly doing more amendments. I'm sure we'll do more amendments based on how things work out. But I think in the national consultations we did last year, before passing the bills, we specifically asked the communities everywhere we went: do you think this could work in your community? And everyone said yes.