Jurisdiction for landownership determination under CLMA
Updated: Jan 26, 2022
The enactment of the Customary Land Management Act (CLMA) in 2013/14 was essentially supposed to address landowner concerns over their rights being taken over by greedy politicians, unscrupulous investors and sometimes arbitrary courts that did not care much about landowners’ rights or interests.
At that stage of the country’s development, landowners had had enough with the way the former Land Leases Act was being implemented, especially when smart politicians began to abuse their powers by leasing off “disputed” lands to their cronies and friends – creating real issues for landowners. No doubt the arrangement prior to the change of the law did work for a time under the Land Leases Act and the Land Reform Act – until Vanuatu began to witness some of the most corrupt land dealings in its history, particularly from the late 1980s, early 1990s even to early 2000s. The land dealings were no different to when the colonial masters were still around.
The most notable change in the Customary Land Management Act N0. 33 of 2013 was the abolishing of the powers of politicians – particularly that of the Minister for Lands. It has to be said the logic behind the former arrangement, was so that developments could be facilitated quicker and easier without having to wait – almost forever at times, to have custom landownership determined by the Courts. A steady backlog of land dispute cases had been piling up by then in the hands of the judiciary, dating back to the time of independence.
Ten years from the passing of the 2013 Act, we must question, “how has the CLMO fared, and has it addressed what it was meant to fix?” We ask this question because despite its good intentions, it appears we are getting nowhere in restoring justice for the poor landowners.
The CLMA was meant to give final authority to resolve customary land ownership and land use rights to customary institutions, known loosely as the ‘nakamal’. Determination was supposed to be based on the rules of custom. The Act was also meant to give legal recognition to the ‘nakamals’ or Area Land Tribunals as the only customary institutions to resolve customary land ownership and land use rights disputes. For obvious reasons no provision was made for any upper courts, let alone the Supreme Court to review substantive decisions of the customary institutions.
However, C4J is seriously concerned that the CLMA is currently being violated with the involvement of lawyers and judges in a Big Bay land dispute case of Pakatara and Puel-Vun-Supe. The land was determined at the tribunal level to belong to Chief Solomon Tavue and his family. Such a determination was made and witnessed by various local levels of authorities, including the Area Land Tribunal in Big Bay, as stipulated by the CLMA.
But currently a Judicial Review (JR) (JRC N0. 3553, 3455 of 2021) has been filed – intriguingly by a party – Mr Noel Rav as the applicant, who it was determined does not belong to the Puel-Vun-Supe land. Even more intriquing – the case was filed without the knowledge of the other parties except the Chairman of Taslamane Area Lands Tribunal (Big Bay). Lawyer Sakiusa Kalsakau is representing the applicant with Taslamane Area Lands Tribunal named as first defendant.
The applicant is seeking Orders from the Court to quash the Tribunal decision. The applicant has also filed for an urgent interlocutory judgement seeking Orders to restrain the first defendant from conducting any hearings until the Court determines their claims. We view this as interference in a legally constituted custom authority mandated under CLMA. We believe the Supreme Court should never have entertained the JR in the first place.
At the moment the JR is interfering in the custom owners’ ability to obtain a negotiators certificate under the CLMA. (This process by the way seems anachronistic at best. We say this because a mature customary approach is really all that is needed. If the participants in any land transactions have issues, then they must be allowed to confront each other without the need to have their bona fides checked, and to see whether they pass muster morally or culturally or racially. That is all there is to be done and yet it is so frustrating trying to obtain a negotiators certificate).
Since the passing of CLMA, the law itself has undergone several amendments in 2014, 2016, and 2017 to address areas of concern which for the Government, while appearing to be landowner-friendly, were highly ‘anti-foreign investment’. It became apparent the CLMA did not simplify the leasing process. If anything, it stagnated the process. Original provisions of the CLMA also provided for consent for use of land to be obtained from all concerned parties, which made leasing process even more difficult and cumbersome.
This was not the case with the Pakatara and Puel-Vun-Supe. The land had been determined and witnessed by custom authorities, as well as the Sanma provincial authorities. And yet the Supreme Court seems willing to intervene by way of this judicial review.
Last year parliament was supposed to pass further amendments to iron out teething issues with the law, in order to streamline various processes and functions – particularly with the issuing of a negotiators certificates under the Land Reform Act (CAP 123), processing of custom landowners determination under CLMA; and the process of lease creation under the land leases Acts (CAP 163). The amendments do not compromise the core functions of the law, which is to keep the courts and politicians away from determining customary land ownership, as intended by the framers of the Constitution. These significant changes are intended to better reflect the intention of the Constitution, where in Chapter 12, Article 73 stipulates that: “All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants”. The next Article (74), further stipulates that, “The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.”
We strongly call on the Government and the authorities concerned to seriously consider such blatant abuses of power and take appropriate action before the Courts effectively nullify a law that was meant to protect landowner rights and interests. The lawyer of the party concerned, including the judge in the judicial review should keep away from the case in our view.
We wait to see if someone will be held responsible for corrupting the process of custom.