In around early 2018, Campaign for Justice (C4J) became inundated with complaints from frustrated custom landowners about the level of incompetence and impunity within the Customary Land Management Office setup under the Customary Land Management Act N0. 33 of 2013 to properly manage land disputes in Vanuatu from the nakamal level up. The Customary Land Management Act N0. 33 of 2013 superseded its predecessor, the Customary Land Tribunal Act N0. 7 of 2001.
One of the first to raise his voice and bring such a complaint forward was a young chief and custom landowner from Motalava Island in Torba Province. Since then, C4J has received and dealt with several other cases of complaint against the CLMO.
Most blames appear to be laid squarely at the feet of National Coordinator (NC) and his Custom Land Officers - appointed to oversee customary land tribunal processes in Vanuatu. A common thread seems to be that the Custom Land officers are not properly trained and that due to their lack of capacity, they do not have the necessary skills to carry out their roles effectively.
According to the Act, land dispute claims often commenced at the nakamal level and may be moved through to the Area Lands Tribunal or Joint Area Lands Tribunal if unresolved at the preceding stage. One could only appeal to the Island Court or the Supreme Court over procedural matters, not the substance per se.
What seems to frustrate most is the inability of CLMO officers to ensure that land claims are managed effectively. But more than that. Such people are expected to train adjudicators to ensure that they administer land justice in a consistent, timely and fair manner.
Landowners complain that the Act is too cumbersome; duplicates procedures which often cause confusion rather than provide clarity in the resolution of customary land disputes.
Due to the prevailing issues over the implementation of the Act, earlier this year, the Government appointed a group of consultants to review the Act and provide recommendations for how to go forward particularly to ensure that the Act does not become an hindrance to development.
The consultants have since completed their Review Report, but the Government appears to be unsatisfied with the Report. As a result a new group has been appointed to revisit the work of the first group.
C4J has considered various complaints and has carried out a brief survey of the main factors contributing to the bottlenecks in the tribunals system and the inability of the CLMO officers to carry out their duties and responsibilities proficiently. The following cases provide substantial grounds which could be termed as factors forming the basis for custom landowners’ complaints.
We have studied the Big Bay Bush Land Claims of Puel-Vun-Supe, Pakatara and Puelrus Land claims on Santo (Chief Solomon Tavue, Thomas Job and others, Forari Land Claims (Chief Timatasomata Marakimantapu Tariwer, Chief Tarinuamata and others on Efate, Pakloas Land Claim, (Chief Benbi Mogeror, Chief Melteneckneim and others, NW Malekula, Chief Tipoloamata, Usamilimata, Tarisaliu and Timatasomata-Tanaroro Land on Tongoa and Takara Land Claim, Chief Amearaliu and others, North Efate, to name a few.
Summarily the backlogs illustrate nothing but incompetence; diminished capacity of the regulators/officers and the deficit of authority in every executed part of this unique process which sublimates the purpose of the Act. It also leaves in its place a growing failure generally of our culture. To a once lawful society, hope dims as in its place anarchy displaces the remnants of a proud people.
For instance 'Puelrus' is a fictitious name that a couple of false claimants coined to push their claims in a Big Bay land dispute case. The Puel-vun Supe nakamal first met in December 2016 and remains a stunning example of the farce this business of adjudication can become.
Hear this: some 22 claimants registered to establish ownership of that land. Together with the original claimant (who pursued this declaration) it meant a total of 23 claimants. There is no doubt that 22 of the claimants had to be either liars (opportunists), or just misguided fraudsters. But since then only one participant - a co-Chairman - had the integrity to resign and separate himself from this pitiful exercise.
As it stands, no one seems to be concerned about the greater failure of our culture which permits and facilitates such widespread lying to persist, even to prevail! No one amongst the claimants and/or those just interested, expected accountability to result from this event - it just doesn't happen anymore. And they were not disappointed! No one, even the CLMO can hold anyone responsible.
This particular land claim took three years to go from the failed nakamal to the Island Court (land) and hence to Area Land Tribunal which finally sat in March 2020 and adjudicated on the claim - three years from the first sitting of the nakamal.
That did not prevent the process from being used once more to thwart an outcome since it contradicted certain bizarre beliefs still held by some few that their rights had been compromised and filed an appeal for review. And, once again, in that court the appeal and consequential 'urgent' applications still sit, now going on one-and-a-half years later because no judge has been appointed to that bench since Mr. Justice Daniel Fatiaki retired. Justice Fatiaki was appointed specifically to preside over land dispute cases. As a result in the eight years of implementation of CLMO, only a handful of land dispute cases have been adjudicated upon. Most are still waiting to be resolved by CLMO and the nakamals.
Below are just a few examples of the challenges CLMO is facing. It appears no one seems to bother addressing them.
The role of the National Coordinator and his capacity to be able to effectively manage his duties and responsibilities under the Act lacks impetus. In fact the role of the National Coordinator can only be characterized as aloof, indifferent, careless and/or ineffectual. But alas, as is rife throughout our culture he is not held to account.
There seems to be very little or no requirement for accountability at all from the NC which contributes to the current lack of proactive approach to his duties and responsibilities under the Act.
Custom Land Officers (CLO) appointed to manage the CLMO officers in all the provinces are not properly trained. Most lack the capacity to be able to carry out their functions effectively under the Act. There seems to be very little or no supervision by the National Coordinator of their roles.
Adjudicators vested with the responsibility to administer justice in the Tribunals lacks proper trainings.
Venues where Tribunals are held are not conducive to the important role of adjudicating sensitive land matters. In most cases, adjudicators are distracted by several factors such as their security and safety which would most likely affect their independence.
Offences specified within the Act are not (at all) fully enforced which contributes to the deteriorating effect of the Tribunals.
The capacity of the Island Court Land is currently handicapped by the inaction of the Judiciary to appoint a replacement for the outgoing Supreme Court Judge Daniel Fatiaki.
Currently there are no Chairmen of all the Island Court Lands to deal with Tribunal appeals which is a cause for unnecessary delay in the administration of justice.
Land in our society and the right of ownership are vested in our custom laws. Custom chiefs are entrusted with the powers and duties to protect and enforce customary land laws so that landowners continue to enjoy their perpetual right of ownership.
These inalienable rights of land ownership in Vanuatu are protected under the Constitution and Parliamentary Acts, legislated to protect customary rights of landownership. As Vanuatu Population continue to grow and our land mass continues to shrink, the Government has a very important duty and responsibility to ensure that appropriate institutions are created and staffed with qualified people to provide these essential services to citizens of Vanuatu.
We call for action to remedy the situation affecting the role of CLMO and its mandatory duties and functions.
- This article was first published by Daily Post on 19th October 2021