Better protection for custom owners: Key changes in Vanuatu’s new land legislation

by Siobhan McDonnell

Last Thursday marked the gazettal of historic land reform legislation in Vanuatu that will radically alter land dealings and provide improved protection of custom owners’ rights in customary land. The new laws consists of four key changes: they alter the Constitution to include recognition of customary institutions and a role for the Malvatumauri (National Council of Chiefs) in providing advice to Parliament on changes to land law; allowing customary institutions to make final determinations of who the custom owners of an area of land are; removing the power of the Minister over customary land; and, it is hoped make land dealings fairer. This blog will briefly describe the process that led to these historic changes and outline the key elements of the new land reform package in more detail.

Mapping the land grab
Vanuatu is located around 1750 kilometers to the east of northern Australia, between New Caledonia and the Solomon Islands. The latest census recorded the population of Vanuatu at 243,023 is located across an archipelago of 85 islands, with 176,816 people living in rural areas, and 52,207 in urban areas (National Population and Housing Census 2011: x). Vanuatu is also one of the most culturally and linguistically diverse countries in the Melanesian region, and in the world.

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Fuelled by speculative land dealings since independence in 1980 Vanuatu been host to a ‘land grab’ whereby leases have been signed over customary land often without the consent of custom owner groups. Leasing statistics indicate that in 2010 9.5 per cent of the total land area of Vanuatu has been leased (Justice for the Poor 2012). On the main island of Efate in Vanuatu 69.5 per cent of urban Efate, and 43.6 per cent of rural Efate are under lease (Justice for the Poor 2012). This includes, the leasing of 56.5 per cent of coastal Efate or 121.5 kilometers (Justice for the Poor 2012). My own experience based on three years work in North Efate suggests that leasing of the Efate coast has continued at a rapacious pace since these leases were recorded at 2010, with significantly more of the North Efate coast now under lease

The key agent in this land grab has been the Minister of Lands. In the 30 years since independence of the 6,803 rural leases that have been granted, 1,458 were signed by the Minister as lessor, or 21.4 percent (Justice for the Poor 2012). The Minster’s power of approval was originally intended only to be used with respect to land alienated prior to independence where the ownership of the land was disputed, thus the incidence of the use of the power to sign off on leases should be decreasing. Trend data suggests, however, that the use of the Ministerial power to sign off on rural leases has been increasing over time, in accordance with the increased interest in land speculation in Vanuatu. At its highest point in 2004 the Minister for Lands was signing off on just under 250 leases over rural areas, on previously held customary land (Justice for the Poor 2012). These figures however, probably underestimate the level of leases granted by Ministerial power as statistics for approximately 29 per cent of the leases registered in Vanuatu do not name the Lessor (Justice for the Poor 2012).

A new Minister of Lands from April 2013
The status quo of land dealings would have remained unchanged if not for the appointment of Ralph Regenvanu to the Ministry of Lands. From April last year I worked as the Legal Advisor for Minister Regenvanu, a position I continue to hold. We immediately began an ambitious program that was designed to challenge previous Ministerial corruption and engage in a large-scale land reform project. Minister Regenvanu led a nationwide consultation tour, that I took part in, to seek advice on the changes needed to the land law in Vanuatu. The tour built on the previous 20 recommendations of the National Land Summit held in 2006. A High Level Working Group was formed of key government, non-government, women, youth, business and investor representatives to meet regularly and provide advice on the drafting. A workshop was held last year that was chaired by Minister Regenvanu and attended by a number of expert ANU academics to provide advice on the package of legislation for which I was the principal drafter. This work culminated in a National Land Law Summit held in Port Vila 16-17 October 2013 and attended by the Acting Prime Minister and other Ministers, the Malvatumauri (National Council of Chiefs), the Director of the Vanuatu Cultural Centre and Vanuatu Cultural Centre field workers from across the island, representatives from key government departments and non-government organisations, and representative Chiefs, women and youth chosen during the nationwide consultation tour. The National Land Law Summit and Malvatumauri supported the new land law package. Subsequently the land reform package and the Constitutional amendments were passed by Parliament in December 2013, and finally gazetted and made law on Thursday February 30, 2014.

A radical overhaul of land law
Vanuatu’s new land laws are contained mainly in two pieces of legislation: a new Customary Land Management Act; and, significant amendments to the existing Land Reform Act. I will begin however, with a discussion of the two Constitutional amendments that support the operation of the new laws. First, a change to Article 30 of the Constitution such that Parliament must now consult with the Malvatumauri about any changes to land law in Vanuatu. Second, a newly drafted Article 78 that is an attempt to enable legal pluralism such that customary rather than formal state courts can resolve who the customary owner groups are for an area of land. As Minister Regenvanu explains “The new laws bring determination of custom owners back to customary institutions, it removes the power from courts and the government to determine who the custom owners are and puts it back under rules of custom.”

The new Customary Land Management Act, which replaces the existing Customary Land Tribunals Act, creates new processes for identifying custom owner groups and managing disputes about custom ownership in accordance with the rules of customary law. It includes limited rights of appeal on grounds of improper process, for example a meeting not being held properly, but requires that final binding determinations that identify custom owner groups can only be made by customary institutions. Accordingly my drafting of Article 78(3) is as follows: ‘the final and substantive decisions reached by customary institutions or procedures…after being recorded in writing, are binding in law and are not subject to any appeal or any review by any Court of law”. This represents an important and historic attempt by the Vanuatu Parliament to amend the Constitution so as to reflect more adequately the predominance of customary rather than state institutions in managing the identification of custom owners. It is anticipated that this will provide for more accessible determinations of these important issues at a local village or custom area level.

Enabling customary institutions (termed nakamals) to make determinations about custom owners of an area of land, while hugely popular in Vanuatu, is not unproblematic. Aside from numerous implementation issues much of the discussion around the operation of customary institutions involves a reification of these institutions and fails to acknowledge that the institutions are mostly dominated by Chiefs that I refer to as ‘the Masters of Modernity’ (see McDonnell Thesis forthcoming). A series of safeguards around appeal rights have been included in the legislative package in an attempt to allow the voices of women and young men in particular, to be heard in meetings of nakamals. Whether these protections are enough remains to be seen and the Acts include a reference to regular review periods.

Fairer land deals and removal of the powers of the Minister
A fairer leasing process that involves the free, prior-informed consent of custom owner groups to any development on their land is the basis of major reforms that have been made to the Land Reform Act.  The new leasing process also requires that environmental and planning safeguards be met and that custom owner groups access to gardens, coastal and sea estates be maintained. All of these requirements seem straight forward in the context of Australia but present a radical new direction from the leasing practices that have historically taken place in Vanuatu.

Reforms to the Land Reform Act also remove the power of the Minister of Lands to sign on behalf of disputing custom owner groups (the basis of the land grab discussed above) without the consent of the disputing parties. Also removed is the power of the Minister to create leases over state land without the approval of the Council of Ministers and other relevant authorities. This will radically change dealings in leases over customary land and hopefully bring about an end to the historic corrupt practices that numerous former Ministers’ have engaged in, in the widespread leasing of customary and state land often without the consent of custom owner groups or for personal gain.

Together these package of reforms present a new era in the protection of custom owner rights over customary land in Vanuatu and hopefully a future of more equitable and sustainable development. They do however also present a challenge to the investor interests that are so influential in Vanuatu politics. Already there is discussion in Vanuatu that if the government changes the current opposition will wind back the reform package. It has taken 33 years and the leadership of Ralph Regenvanu to bring about these reforms, it will be disappointing if political and investor interests mean that they are quickly unraveled.

Siobhan McDonnell is a Lawyer, Economist and Anthropologist who is completing a thesis on land and law at the ANU. She is currently the Legal Advisor to the Minister of Lands in Vanuatu and was the principal drafter of the land reform package described in this paper. 

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Pacific History Association 21st Biennial Conference 2014

Dec 3rd,  National Taiwan University Campus – Taipei

Dec 4th-6th, Taitung University – Taitung

 Conference Website: http://pha2014.erenlai.com/index.php?lang=en

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The 21st biennial conference of the Pacific History Association (PHA) will take place in Taipei, the capital city of Taiwan, and Taitung, in the Austronesian-speaking indigenous area of southeast Taiwan. We will convene at Taipei for the first part of the conference, and then travel to Taitung to be more engaged with indigenous communities for the second part of the conference. Taitung is famous for its rich Austronesian cultures and the beautiful scenery between coastal mountains and the Pacific Ocean. Tours to Austronesian villages, archaeological sites and the Prehistoric Museum will be arranged.

Conference Theme:

Lalan, Chalan, Tala, Ara (Path)–Reconnecting Pacific-Asia Histories

In Proto-Austronesian, zalan refers to path, way or means to do something. Words of the same cognate are widely found throughout the Pacific: lalan/dalan (Taiwan, Southeast Asia), chalan (Chamorro), tala (Solomon Islands) and ara/ala (Polynesia) are some examples that exhibit the strong connections of people and places since ancestral times. The path originates from the past, and points to the future; it links tradition to the present; and it denotes both history and future prospects as an inter-linked whole.

The next PHA conference will be held in Taiwan, the island on the pathway of Austronesian migrations to the Pacific. Since the 17th century, Taiwan has reconnected to the Pacific through trading activities; and has also experienced multiple colonial regimes, and participated in World War Two as a Japanese colony. Recently, growing ties between Pacific Island communities and Asia make this a good time to reflect on the journeys our ancestors have traveled, and to further reconnect Pacific-Asian histories. We need to know our path(s) in the past in order to find our way(s) to the future.

A call for papers and details on conference themes can be found at http://pha2014.erenlai.com/index.php?option=com_content&view=article&id=83&Itemid=167&lang=en

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Call for initial Expressions of Interest for a 3-year PhD Scholarship for ‘The Moral and Cultural Economy of the Mobile Phone in the Pacific’ project

This three-year scholarship is for a PhD candidate who will conduct ethnographic field research for a study of the moral and cultural economy of the mobile phone in Fiji. S/he will spend at least 12 months over the three years of candidature in Fiji documenting and analysing the relationships between consumers, companies, and state agents that take shape around mobile phones, digital media anPacific-ICT-Blogd infrastructures. The candidate will carry out research based on his or her specific expertise and research interests while also contributing a key component to a broader comparative study with Papua New Guinea funded by the Australian Research Council (ARC) Discovery Grant “The Moral and Cultural Economy of the Mobile Phone in the Pacific”. The candidate will also become a Postgraduate Member of the Digital Ethnography Research Centre at RMIT University Australia. A formal call for scholarship candidates will be issued pending final approval (anticipated in April 2014).

Eligible candidates will have a BA with Honours or MA/MsC (Research) in Anthropology, Sociology, Media, Communication, Science and Technology Studies, Informatics/Information or other related discipline. Candidates must be willing to undertake ethnographic fieldwork in Fiji and be willing to learn the language of their fieldwork site. Pending final approval, the Scholarship will include a tax-free stipend of $24,653 per year for three years (July 2014 to June 2016) and project-related research expenses. Please note that all applicants will need to apply for and be accepted to the PhD program in Media and Communication at RMIT University to be eligible for the scholarship. Application details, including details and deadlines for RTS placement for Australian and New Zealand citizens and anticipated tuition fees for International candidates, can be found at: http://www.rmit.edu.au/browse;ID=DR211.

Initial expressions of interest, including a CV and 500-word initial project proposal should be sent before 30 March 2014 to Dr. Heather Horst at heather.horst@rmit.edu.au with the subject line (PHD Scholarship EOI).

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‘Micronesia in Focus’ Symposium: Call for Papers

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Venue:                      Hedley Bull Centre (130), Garran Road,                                                                                       Australian National University

Date:                         28—29 April 2014

The Micronesian and Australian Friends Association (MAFA) is hosting an interdisciplinary symposium on 28 – 29 April 2014 at the ANU. The symposium aims to bring together academics, parliamentarians, policy makers, business leaders, and civil society representatives to share and discuss research and policy issues relevant to the Micronesian region.

Day One will open with keynote speaker Dr. Paul D’Arcy, a Pacific historian at the ANU with panels discussing climate change; and fisheries and ocean management. Day Two will open with keynote speaker Dr. Manuel Rauchholz from Heidelberg University. Panel topics include Micronesia as an intermediary region in establishing relations between Australia, the USA, China and Japan; and Micronesia’s Future Engagement With the Outside World

If you would like to present a paper or panel please submit abstracts by 20 February 2014.

Registration can be done online at https://sites.google.com/site/micronesiasymposium/

Registration fee is AUD $20.00 which includes a cocktail party on the evening of the 28 April (students are exempt from fees). Registration closes 30 March 2014.

Contact:         Nicholas Halter: Ph: +61 2 6125 4413 or microaustfriends@gmail.com or                                Gonzaga (Zag) Puas   Ph: +612 6125 2308 or gonzaga.puas@anu.au.edu

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Five Questions with Katerina Teaiwa

Pacific Studies Co-Convener at The Australian National University and President of the Australian Association for Pacific Studies Dr. Katerina Teaiwa talks with Rosemary Pennington about her current work as a fellow with Indiana University’s Framing the Global initiative and how her project Indigenous Peoples and the Global Remix draws on interdisciplinary aspects of Pacific Studies to reframe, and re-imagine a distinction between the local, regional and the global. Read the full interview here.

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Review – Islands at risk? Environments, economies and contemporary change

Islands at riskIslands are back in vogue. It’s not that they ever disappeared but climate change in particular has brought islands to the fore of a global conversation on the way we think about human development. Cast as the canaries in the global climate coal mine – ironically, as the author of Islands at Risk? John Connell points out, as they have neither canaries nor coal – the vulnerability of islands has been ‘rediscovered’. This reawakening is, however, largely misguided. In the short term, he argues, the vulnerabilities that islands face are not those commonly associated with climate change and sea level rise but are in fact much closer to home. [read more…]

John Connell (2013) Islands at risk? Environments, economies and contemporary change. Cheltenham: Edward Elgar. hbk. ISBN: 978-1-78100-350-3. x+337pp (of which 74pp are references) + index.

Jack Corbett is a Postdoctoral Research Fellow at the State, Society and Governance in Melanesia Program, ANU.

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Call for papers AAPS 2014 conference Oceanscapes: cooperation across the Pacific. April 22-26, 2014. University of Sydney.

aaps_logoThrough this interdisciplinary conference the Australian Association for Pacific Studies seeks to bring researchers across Oceanscapes to share their knowledge and experience; to benefit the peoples of the Pacific region, and to advance scholarship about the places between the better-known American and Asian rim countries.

Abstracts are invited that address the conference theme through on of the strands listed below. Please submit your abstract directly to the session organiser. Further details can be found at:

  • Pacific Futures
  • Activism a panel in honour of Faith Bandler.
  • Populations on the move
  • Performing/performance
  • Archaeology now
  • Search for stability

URL: http://sydney.edu.au/museums/research/aaps-conference.shtml

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Julie Bishop ‘Australia-PNG: A partnership of equals’

Australia and Papua New Guinea enjoy a special relationship – one of mutual affection, shared history and shared geography. Today, as they have for more than two decades, ministers will meet at the Australia-PNG Ministerial Forum to build even closer ties for the years ahead.

New York, Sept 23, 2013 Australian Foreign Minister Julie Bishop

Source: http://australia-unsc.gov.au/gallery/

The Australia-PNG relationship is one of this Government’s highest foreign policy priorities. I believe there is still so much more we can do to deepen the relationship, including moving on from stereotypes. We should not think of the relationship in terms of aid-donor and aid-recipient – rather we need to treat each other as equal partners. [Read more…]

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What happens next in PNG’s land grab saga?

Five years have now passed since the alarm was first raised about the alienation of huge areas of customary land in Papua New Guinea through the grant of Special Agricultural and Business Leases (SABLs). As if to commemorate this anniversary, the PNG government has finally released the reports of two of the three commissioners asked to investigate the SABL scandal in July 2011. In my last post on this subject, back in August last year, I declared that these reports would ‘shortly’ be tabled in PNG’s national parliament, but in PNG, a ‘short’ time or distance can sometimes be quite long. For more than a year stakeholders in PNG’s land grab debate have been speculating about the reasons for the long delay in the completion and release of these reports; wondering what recommendations they might contain, and asking what Peter O’Neill and his government would do with those recommendations once they were made public. [Read more…]

Colin Filer is an anthropologist and Director, Resources Environment & Development Group, Crawford School of Public Policy, ANU.

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Pacific studies @ ANU in Samoa 2013!

From the Samoa Observer –

ANU, NUS & USP students and staff at the USP, Alafua Campus.

ANU, NUS & USP students and staff at the USP, Alafua Campus.

The Australian National University (ANU), the National University of Samoa (NUS) and the University of the South Pacific (USP), Alafua Campus have partnered in a So’o Collaboration.

Focusing on exchanging views and perspectives through Research and Interactive Multimedia and Seminar Presentations on Arts and Culture in the areas of Arts Policy Development, Education and Cultural Industries in Samoa and the Pacific, the So’o Collaboration was initiated by three lecturers from the three universities.

Dr Katerina Teaiwa, Convenor of the Pacific Studies program at ANU and President of the Australian Association for Pacific Studies, Maluiao Leua Latai, Senior Lecturer of the Expressive & Practical Arts Department – Faculty of Education of the National University of Samoa and Tuilagi Seiuli Allan Alo Va’ai, Director of the Polynesia Outreach Program, University of the South Pacific-Faculty of Arts, Law and Education were all involved.

See here for the full article!

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Postdoctoral Fellow in Oceanic Art – Washington University in St. Louis

The Department of Art History and Archaeology at Washington University in St. Louis, and The Saint Louis Art Museum seek specialist in Oceanic Art, for a joint teaching-curatorial two-year position beginning July 1, 2014.

At The Saint Louis Art Museum, the Fellow would study and interpret the fine collection of nearly 700 objects from the 19th and 20th centuries, that come from Papua New Guinea (including Sepik River Valley material, Lewa masks, Kerewa gope boards and Korewari  figures), and also from Vanuatu, the Solomon Islands and Polynesia. The Fellow would also help with the installation and interpretation of a major special exhibition “Atua: Sacred Gods of Polynesia” in the fall of 2014. [See for details on eligibility and how to apply]

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2nd International Sustainable Sea Transport in the Pacific Talanoa Celebrating the Past – Sailing into the Future 14 – 18 July 2014

call for abstracts

Building on the first successful Sustainable Sea Transport Talanoa held in Suva in 2012, the 2nd International Sustainable Sea Transport in the Pacific Talanoa will again bring together key stakeholders with an interest in heritage, culture, seafaring, science, vessel design, economics, policy, regulation, and industry to celebrate Oceania’s seafaring heritage and progress planning towards a sustainable seafaring future.

Sea transport is the Pacific’s lifeline.  Issues of sea transport remain universal and primary, a basic human need of Oceanic peoples today and tomorrow as throughout all past human interaction with the Pacific.  The region’s transport issues are unique; tiny economies scattered at the ends of some of the longest transportation routes in the world and arguably the most challenging network to maintain per capita and per sea mile with the resource base available to support it.  Sea transport is essential at all levels of society from fishing and local transport needs of small isolated islands and villages to inter-regional shipping needs of nation states.  Yet Pacific Islanders once moved at will around the Pacific using only renewable energy-powered vessels.

The Talanoa will be of interest to communities, seafarers, government agencies, NGOs, research institutions, regional organisations, and shipping and boat building industry.

Deadline for submission of abstracts has been extended to December 31, 2013

See the conference website for further details

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Lon Marum: Film launch

Next Thursday the Macleay Museum will host the launch of a film documentary, Lon Marum.

The film follows co-director Chief Filip Talevu, local community leader and fieldworker for the Vanuatu Cultural Centre, as he takes us on a journey through the profound relationship that the people of Emyotungan and West Ambrym have with the volcano.

Q&A with the film makers will follow the screening.

5pm, Thursday 28th November

Seating will be limited, so please RSVP
Phone: 9036 5253
Email: macleay.museum@sydney.edu.au

More information:
http://lonmarum.com/
http://whatson.sydney.edu.au/events/published/lon-marum-film-launch

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Professor Darrell Tryon Research Scholarship

Are you currently a PhD student? Are you interested in spending 3 months doing research in New Caledonia?

The Professor Darrell Tryon Research Scholarship was established in 2013 to honour the memory and continue the academic legacy of Professor Darrell Tryon, an eminent scholar of the Australian National University who devoted a distinguished research career to the languages and peoples of the Pacific and who was a great friend of France. The exchange program will enable one PhD scholar from ANU to spend 3 months at L’Université de la Nouvelle-Calédonie (University of New Caledonia, UNC) and one PhD scholar from UNC to spend 3 months at ANU, undertaking doctoral study towards the completion of their PhD degree.

The French Government will reimburse the return airfare from the home institution to the host institution for each scholar. For the duration of the program the host institution will provide the following benefits:

  • On-campus residential accommodation at no charge.*
  • A monthly stipend equivalent to 1,000 Euros.
  • Office facilities

*Off-campus residential accommodation is not covered.

Selection Criteria

The Selection Committee will rank the applicants on the basis of academic merit and research quality, and the capacity of the host universities to support the research nominated by the applicants. The first-ranked applicants from each institution will receive the scholarship offer, with the order of merit to serve as a reserve list in the event that an applicant is unable to accept an offer.

Eligibility

Applicants must:

  • be enrolled as PhD scholars in good standing in their home institution;
  • have completed a minimum of 12 months equivalent full-time of their PhD enrolment;
  • be undertaking research in any of the fields of study belonging to the Social Sciences and Humanities, including the Arts, with preference given to PhD scholars working on topics related to the Asia-Pacific region including Australia; and
  • be able to travel to the host university at the time agreed for the duration of the program.

Please ensure you carefully read the conditions of award before applying for this scholarship.

Application

Applications will consist of:

  • An online application form with a concise statement of the research the applicant proposes to undertake at the host university.
  • A statement of support from the applicant’s principal supervisor at their home institution.
  • A copy of the applicant’s curriculum vitae.

Incomplete applications will not be considered.
Applications close 30 November 2013. For further information, please contact cap.student@anu.edu.au

http://asiapacific.anu.edu.au/students/scholarships/professor-darrell-tryon-research-scholarship

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Seminar: The institutionalisation of ‘Kanak identity’ in the New Caledonian Customary Senate and Kanak customary law

Presented by: Rowena Dickins Morrison

Where: ANU Centre for European Studies, 1 Liversidge St, Acton (Bld # 67c), The Australian National University

When: 29 November 2013, 12.30 – 2.00pm

Colonised by France in 1853, New Caledonia is currently engaged in a process of ‘decolonisation’, as defined by the 1998 Noumea Accord. In 2014, the Accord will enter its final phase, during which one or more restricted-electorate self-determination referendums will be held. This period will be crucial, not only for the definition of the country’s relationship to France, but also for the country’s internal institutional structure and the balance established between the country’s Indigenous People and its non-indigenous communities. The current balance purports to be founded on the ‘full recognition of Kanak identity’, which is identified in the Noumea Accord as the necessary precondition for durable peace and stability, and the construction of a ‘common destiny’ shared by all New Caledonian citizens. [read more…]

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