Time to talk – The new Vanuatu land laws and respect for kastom
In December 2013 the Vanuatu parliament passed minor amendments to the Land Leases Act, repealed the Customary Land Tribunal Act and introduced the Customary Land Management Act. The minister of lands, Ralph Regenvanu, has been the key advocate of land law reform. He consulted with the Malvatumauri (Vanuatu’s national council of chiefs) and other kastom groups before taking them to parliament. At the same time people were voicing concerns about them. The Vaturisu council of chiefs, representing the island of Efate, site of the most egregious abuses of land rights, spoke publicly against it. The leader of the opposition, Ham Lini, argued there had not been enough time given to parliament to consider them. Several backbenchers privately expressed reservations about the new law, and yet there was no real debate when the bills were read.
Full credit must be accorded to the minister of lands for starting what is indeed an important process. No one questions the good intentions of the legislation. For far too long landowners have had their powers undermined by the formal institutions. The one key change the new laws make is to take away the ability of the minister to act as arbitrator of leases on contested land. This measure rights a historical wrong that has been a chronic source of corruption and unfair dealing since independence.
In order to secure the agreement of backbenchers uneasy about the new legislation, further consultation was promised before the new laws were to be gazetted, recognising concerns about the new Customary Land Tribunal Act in particular. The process was begun in February, when the government held a series of meetings with landowner groups in Efate. But then on February 20, in the midst of turmoil surrounding a threatened no confidence vote, the new laws were brought into effect.
The lack of further consultation will probably lead to more uncertainty about customary land ownership, not less, and could indeed become the source of further land disputes. These, ironically, are the very problems the new laws are meant to address.
Failure to consult is also failure to confront the question at the heart of all the arguments for and against the new land laws: How can kastom be respected and recognised within a national legal framework for managing land claims and use?
This central question has remained unanswered since the time of Independence, when the Constitution enshrined the rules of kastom as the basis for all land dealings in Vanuatu and returned all land in Vanuatu to the customary owners. This recognition of kastom goes further than in any other country in the world – it establishes the unique character of Vanuatu as a nation. But instead of the organic national land law based in kastom envisaged by the nation’s founders, Vanuatu land laws are a primarily an adaptation of ideas and legal frameworks developed elsewhere – and for people elsewhere who see land as belonging to them rather than thinking that people belong to land. They were, in short, designed by people who regard land as property rather than seeing themselves as inseparable from their place.
For ni-Vanuatu, people are part of their place; the two are inseparable. Kastom consists of the ideas and practices that support this unity. Respect for kastom means ensuring these ideas and practices are included in land laws.
The new Customary Land Management Act, which has drawn the most criticism, is touted as a law that supports kastom. But looking at it more closely there are a number of provisions in it which are inconsistent with that assertion.
The Act begins (section 1) with recognition of customary institutions’ authority to determine the rules of custom. But then it goes on to define these institutions as nakamals and ‘custom area land tribunals’, and specifies their role as being able to make legally enforceable decisions regarding land within a state institutional hierarchy for managing land. These provisions undermine the authority of nakamals, putting them at the bottom level of a hierarchy of institutions, and making the state the arbiter of what is a customary institution and what is not. They are not consistent with custom. There should be recognition that customary bodies are defined by people themselves and that these bodies operate in partnership with the state; they are not subordinate to it.
The definition of a nakamal (section 2) is ‘a customary institution that operates as the seat of governance for a particular area. Members of a nakamal include all men, women and children who come under the governance jurisdiction of that nakamal.’ Questions have even been asked as to whether it is possible to define a nakamal in the way the new law has done, given the fluid nature of kastom. Indeed, many have questioned whether it is even possible to codify kastom. Importantly, the definition of a nakamal does not distinguish between custom owners and other people who simply live in an area. This lack of differentiation is not consistent with kastom.
While affirming up front the authority of nakamals to determine the rules of custom, the Act infringes on this authority in relation to customary process and decision making. For example, section 17 requires that a properly constituted meeting of a nakamal requires two thirds attendance of the adult members, and that a decision regarding land ownership needs to be taken by consensus of all members of a nakamal. Section 21 provides that if a nakamal does not make a decision in 30 days that mediation can be called for. These requirements are not customary. They do not for example, require that the customary land owners concerned be present, and the time limit fails to recognise that good decisions can take a lot of time.
The Act also allows people who are not happy with process inside a nakamal to complain about it. Section 22 makes it an offence to fabricate evidence or to obstruct a process. But how is fabrication to be determined, for example, if oral lineages do not coincide? People with a grievance could allege that proper customary practice is an offence in order to sway a decision in their favour.
In addition to the matters prescribed, there are matters and situations that the Act does not address and which could cause problems. For example, it does not provide protections against false customary institutions. It does not address situations where chiefly authority is complicated, contested or being decided. It does not provide any way of determining or limiting who is under the control of a nakamal.
In fairness, Mr Regenvanu accepts that further work is needed to address issues such as these. In the interview above, he addresses many of these concerns directly.
The Customary Land Management Act attempts to restore kastom to its proper place at the heart of all land dealings. But it does not succeed because the people who put it together have not recognised that respect for kastom is as much about how people work through land claims as it is about the specific kinship and other rules they apply, or that kastom is different in different places. And they have not recognised that kastom cannot be subordinated to the law. No one will accept that.
We call for the nation’s leaders to show respect for kastom – do not implement the new laws until people have had the time to talk about them, to work through the proposed changes following their own customary processes. To an extent people need to be left to do this themselves, but there is also a place for government leaders to join their conversations. When leaders do this, they should listen to what people have to say and not impose deadlines or dominate meetings. Take the time to talk, show respect for kastom. And then modify the laws to address the problems that people will surely raise.
