Prior to 2013 few things exemplified Vanuatu’s challenges after its 1980 independence as the kinds of deals that went on within the country’s most important resource sector— land. After decades of colonization during which locals were robbed of their land, all land in Vanuatu was to be returned to the customary owners upon the country’s independence. The Vanuatu Constitution required this—stipulating that land belonged to “custom owners and their descendants” and the “rules of custom shall form the basis of ownership and use of land in…Vanuatu”.
More than 30 years on, a flawed legal framework and less than effective implementation facilitated a land-grab process that some have described as led no less than by the government itself. Up until 2013 Vanuatu witnessed a ‘land grab’ whereby leases were being signed off over customary land, often without the consent of the custom owners. More often than not, the Minister of Lands was responsible. Up until that period, the minister of lands had unilateral authority to approve leases for customary land with disputed ownership, particularly on alienated land. Rather than declining over time, the use of ministerial powers to sign off on rural leases actually increased— propelled by then a growing land speculation.
Weak Foundations and Abuse of Ministerial Powers To make matters more difficult, corrupt practices as a result of weak institutions often characterized the handling of leases. In 2011, a former Director General of Lands, Joe Ligo, made public an interesting report about how certain land deals went wrong. The report was widely reported locally and internationally. One case pointed to the sale of the former Marina Motel right in the heart of Port Vila. Valued at more than Vt100 million (US$1 million), the property was sold by a Minister of Lands to a political friend for Vt100, 000 (US$1,070). The property was almost instantly sold again for about Vt40 million (US$426,000) to an investor. The property was in fact forfeited two years earlier for alleged breaches of the terms of the lease. The Ligo Report also spotlighted a case of landowners from Eton village, in which a block of land was sold for Vt5 million (US$53,219) without the consent of the other land owning groups and then on-sold two years later without any development for Vt65 million (US$691,857) to another investor. The transaction was facilitated by then minister of lands, who granted a 75-year lease for the 17 hectares land. Other land dealings in which proper procedures were not followed were also highlighted in the report. In addition the government was supposed to set up a trust account under what is called Custom Owners Trust Account (COTA) in which rent from disputed lands may be held in trust until proper customary ownership were determined, but such trust funds have never existed. But lands ministers have not been the only ones to come under public scrutiny for questionable land dealings. In 2014 former lands minister Ralph Regenvanu announced the findings of an 18-month inquiry by the Vanuatu Public Service Commission. According to the report, officers of the Department of Lands — from Directors and Senior Officers to Cleaners, used their privileged positions to take at least 30 state lands and properties in both Port Vila, the capital, and Luganville. The 41-page report listed their names and detailed how the public had been short-changed. According to news reports to date justice seems to have been meted out against those concerned by the Supreme Court. Justice Gustaaf Andree Wiltens who was reported to have handed down a judgement in the case has described the action of the former Minister as “corrupt” — ordering staff concerned to return the state lands. The court accepted that the officers concerned had acted without fully appreciating that their decisions might be deemed unlawful.
A New Era for Land Management? The current Customary Land Management Act (CLMA) spearheaded by the Graon mo Jastis party’s Ralph Regenvanu was part of a land law reform package intended to address loopholes found in the former Land Reform Act and Land Leases Act. CLMA has now been in operation for almost five years. Reform efforts have concentrated on how to address the issue of landownership through the customary institution level, without recourse to the courts and removed completely unilateral powers of the minister of land to sign away leases on customary land where ownership was disputed. Not only did it eliminate ministerial powers, the new legislation established a Land Management Planning Committee (LMPC), which oversees all leasing process. Further custom ownership is now determined through traditional means, or nakamals. If a nakamal failed to make a decision, then a dispute could then be taken to the Area Land Tribunal. The reform package also included a significant Constitutional amendment that required the Vanuatu Parliament to consult the Malvatumauri Council of Chiefs about future changes to land laws. The Malvatumauri, created by the Constitution, usually comprised of more than 30 chiefs representing Vanuatu’s main inhabited islands. The chiefly body’s key function is to “discuss all matters relating to land, tradition and custom and make recommendations for the preservation and promotion of ni-Vanuatu culture and language.” Vanuatu’s six provinces all have their own council of chiefs, affiliated with the Malvatumauri at the national level. In addition, most islands have chiefly councils, as well as area councils. The new leasing process also required that environmental and planning safeguards must be fulfilled and that access of custom owners to their gardens, coastal and sea estates were to be maintained as there have been increasing concerns from a broad section of people that locals were increasingly becoming disadvantaged because of unfair land dealings.
Further Reforms A Must Good intentions aside the reforms however, have been a result of a legislative process that was rushed in the context of Vanuatu’s political instability. Even though consultations were carried out throughout all six provinces, and the Malvatumauri Council of Chiefs gave support to the proposals, there was wide consensus that the reforms needed fine-tuning.
When Parliament approved CLMA it was with the understanding that the gazetting (which would put the laws into effect) would be postponed until problematic sections had been ironed out and or tested; and the institutions of management and governance of CLMA were ready for implementation. Within the five years of operation, it is clear there is still a lot to be done to ensure CLMA’s full benefits are realised. The CLMA itself admits this reality, including the ongoing challenge of pinning down correct landowners. The Vanuatu public should continue these discussions and zero in on the best alternatives to address all poor land dealings, and find ways to strengthen CLMA so that it best serves the interest of landowners, while at the same time allowing for the government to continue its nation-building project. Obviously it is a huge challenge but it is one that is well worth grinding out for the betterment of Vanuatu and its citizens.