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.

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.