New territory

05 March 2014
A young boy from Bunlap village on Pentecost Island, Vanuatu. Photo by AFP.

 

A radical overhaul of land law in Vanuatu will offer better protection for customary owners, writes SIOBHAN McDONNELL.

Fuelled by speculative land dealings since its independence in 1980, Vanuatu has been host to an ongoing ‘land grab’.

This land grab has seen leases of customary land signed off often without the consent of custom owner groups.

But, the introduction of historic land reform legislation late last month  will radically alter land dealings and provide improved protection of custom owners’ rights in customary land.

I was fortunate to play a personal role as the principal drafter of the new legislation, and Constitutional amendments. This article briefly describes the political momentum for change and the key changes associated with the land reform package.

A new Minister of Lands
The key agent of the state in Vanuatu's land grab has been the Minister of Lands.  Of the 6,803 rural leases that have been granted in the last 30 years, 1,458 were signed by the Minister as lessor, or 21.4 per cent.

The Minster’s power of approval was originally intended only to be used with respect to land alienated prior to independence and where ownership was disputed.

Therefore 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.. Unfortunately, these figures 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.

The status quo of land dealings would have remained unchanged if not for the appointment of Ralph Regenvanu to the Ministry of Lands in April 2013.

From this time, I have worked as his Legal Advisor. 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 much needed change.

This culminated in a National Land Law Summit held in Port Vila in October last year, which broadly supported  the new land law package.

The land reform package and related Constitutional amendments were passed by Parliament in December 2013, and finally gazetted and made law just two weeks ago.

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.

Two Constitutional amendments support the news laws' operation. First, a change to Article 30 of the Constitution means Parliament must now consult with the Malvatumauri (National Council of Chiefs) about any changes to land law in Vanuatu.

Second, a newly drafted Article 78 attempts 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.”

These changes represent an important and historic attempt by the Vanuatu Parliament to amend the Constitution to more adequately reflect the predominance of customary rather than state institutions in managing the identification of custom owners.

It has also created Constitutional recognition for institutions that are a hybrid of custom and formal legal mechanisms, akin to a third space of legal institutions within the Constitution.

This is a pragmatic response to the lived reality of contemporary legal pluralism and it is anticipated that this will provide for more accessible determinations of land issues at a local village or custom area level.

Fairer land deals and removal of  Ministerial powers
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, planning and cultural safeguards be met. It also requires that custom owner groups retain access to gardens, coastal and sea estates currently a major source of conflict.

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 often 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  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 unravelled.

Siobhan McDonnell is a lawyer, economist and anthropologist who is completing a thesis on land and law at the Australian National University's College of Asia and the Pacific. 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 article.

Read a full report on the new laws and the reform process at Outrigger, the blog of the ANU Pacific Institute.

Updated:  16 October, 2013/Responsible Officer:  Web Communications Coordinator/Page Contact:  Web Communications Coordinator