Working Paper 6 of Volume 3 1999

THE CONTROL AND PROTECTION OF NATIVE LANDS IN FIJI

By Sunil Sharma, LLB

It is somewhat obvious that land issues occupy a position of major significance to a people. For the indigenous Fijians in Fiji land is generally seen as an ancestral trust which the present generation have to pass over to future generations. Similarly, they maintain a very strong cultural link with land which is their most valuable heritage.

This paper discusses the control and protection of native lands in Fiji. It will begin with an evaluation of the customary land tenure system, followed by an analysis of the role of the landowners and their rights under the current system. It will also provide a description of the land dispute settlement system as it operates in Fiji. In doing so, a critical analysis of the law in existence will be provided so that improvements can be made for the better. To illustrate some of the issues raised reliance will be placed on newspaper reports to enhance discussions on the present situation and to take into account the most recent information. Finally, some recommendations for reform will be suggested.

Fiji has both an introduced and a customary land tenure system. This paper concentrates on the customary land tenure system. Under this system, land is owned collectively within the clan, tribe or family due to kinship ties. Approximately 82% of land in Fiji is customary land or native land. Out of this 2/3 has been leased out and 1/3 is only to be used and leased by Fijians.

The land policy in relation to native lands in Fiji is carried into effect in three pieces of legislation; namely, the Native Lands Act Cap. 133, the Native Land Trust Act Cap. 134 and the Agricultural Landlord and Tenants Act Cap. 270. The Native Lands Act plays a crucial role in preserving the interests of the Fijians in native lands under section 3 native lands shall be held by native Fijians according to native customs as evidenced by usage and tradition. This Act also protects the interests of the illegitimate Fijian children by deeming them to be owners of native lands and entitling them to be recorded as members of either their fathers or mothers landowning groups. By section 4, this Act provides for a Native Land Commission to determine disputes as to rights in Fijian land and to record the boundaries to such land including easements or encumbrances. The Commission also has powers to resolve land disputes. The decision of the commission can be appealed within 90 days of its decision to Appeals Tribunal [Section 7 (1)].

The Native Land Trust Act, by section 3 establishes a board known as the Native Land Trust Board (NLTB) which acts as a trustee for the landowners. This Board consists of the President of Fiji (formerly Governor General) as the President, Minister of Fijian Affairs as the Chairman, 5 Fijian members appointed by the Great Council of Chiefs, 3 Fijian members appointed by the Fijian Affairs Board. Whilst looking at the above the NLTB is managed by the indigenous Fijians.

Sir Arthur Gordon the former Governor-General of Fiji took up the idea of setting up of the NLTB in the 1930's. One of his aims were to preserve the Native Land for the Fijians. The Great Council of Chiefs, however, wanted individual ownership. The main reason behind communal ownership was to prevent the landowner from being misled into selling their land at a low price. Accordingly, his idea was to have a body in the form of a trustee to look after the interests of the Fijian landowners who would be the beneficiaries.

As a result the NLTB was formed in 1940 by the Native Land Trust Act to administer designated native land for the benefit of the landowners. The Act guarantees under section 5 that native land may not be alienated except to the Crown. This is justly strengthened by article 38 (8) Constitution (Amendment) Act 1997 which also protects against the alienation of land and fishing rights under custom. Section 4 vests the control of all native land in the NLTB and all such land shall be administered for the benefit of the Fijian owners. Whether the NLTB, pursuant to this provision, has been acting for the benefit of the landowners is, however, an often debated and rather contentious question in Fiji. Furthermore, no native land shall be leased or license granted unless the NLTB is satisfied that the land in question is not beneficially occupied by the Fijian owners and is not likely to be so doing the currency of the lease. Under section 14 of the Act the NLTB deducts 25% of all money received as administration charges.

A number of major questions need to be and have been asked as regards the role of the NLTB. These include the following. Firstly, how can the NLTB benefit the Fijian owners without consulting them? Secondly, since the legislation is silent on this, then how can the NLTB be satisfied without consulting the landowners? If there is a provision to this effect then the mataqalis (landowning groups) will have a locus standi to bring proceedings against the NLTB (details given under the role of the landowners).

The Agricultural Landlord and Tenant Act (ALTA) was enacted in 1966 to regularise the occupation of agricultural land by Fijians and non-Fijians and to establish a set of terms and conditions to be implied in the Contract of Tenancy. Under Section 4 of the Act any person who had been in possession and cultivating any agricultural holding as a tenant for at least 3 years and the lawful landlord including the NLTB had taken no steps to evict the user, then the onus was on the landlord to prove their occupation was without consent. A lease of 30 years from the commencement of the Act was granted under the presumed tenancy.

The landowners in Fiji are to a considerable extent like "toothless tigers" they are neither controlling nor managing their own land, the power is vested in the NLTB which acts like the "big brother" who makes the decisions for the landowners.

Under Section 3 of the Native Land (Leases and Licenses) Regulations, after the deductions of 25% by the NLTB, the balance remaining is further divided as follows:

5% to Turaga i taukei

10% to Chief of the Gali

15% to Chief of the Matagali

and then the balance is divided amongst the members there may be so many members, whatever a member gets is not much. So isn't the disappointment of the ordinary members justified? Due to increasing costs and inflation the landowners are pressing for an increase in the rentals but under Section 22 of the Native Land (leases and licences) Regulations the NLTB can only levy 5% of unimproved capital value of the land as rent so the demands of the landowners for more money can not be met. 'Unimproved value' means, under section 2, the capital sum offered for sale on such reasonable terms and conditions as a bona fide seller would require assuming that the improvements had not been made.

So the best alternative is to get the NLTB to reduce the 25% administration charges or to reduce the amount of money given to the Chiefs. Unfortunately, this has not become an issue yet. The landowners are helpless because under Section 3 of Native Land Trust Act the paramount Chiefs of the Country are the leaders of the Board, it would be a wrong to talk against the Chiefs as a whole.

Normally under a trust situation the trustee consults the beneficiaries. In some respects the trustee is expected to make an independent judgement and is not bound to follow the mandate of the beneficiaries unless perhaps they are in a position to terminate the trust by collective action. But as already seen consultation is not the case in Fiji. Furthermore, if the landowners realise that the NLTB has made a mistake whilst granting a lease or a licence, then can the landowners challenge the decision of the NLTB and seek redress. No, not at all, leave aside fling proceedings against NLTB the matagalis (landowning groups) do not have the locus standi to bring an action against the NITB.

In Meli Kaliavy v NLTB 5 FLR 17 the Supreme Court of Fiji held that individual members of a matagali could not sue the NLTB in their personal capacities. More recently Justice Rooney in the case of Timoci Bavadra v NLTB (unreported 1-7-1986) took this matter further and held that not only could matagali members not sue in their personal capacities but their matagalis themselves were not entities with legal personalities. So the landowners could not sue in the courts through a representative action taken by their leaders.

The system is one, which under the law, is for the benefit of the landowners. Yet these landowners do not have a right to question the decisions made by the NLTB. We should then ask whether there any remedies available to the landowners? Indeed there are and they can be summarised as follows:

(a) The landowners as beneficiaries can sue the trustee NLTB for a breach of fiduciary duty;

(b) They can sue for loss of a right by breach of statutory duty that the action taken by the NLTB has not been for the benefit of the landowners, breach of Section 4 Native Land Trust Act.

(c) The could seek judicial review of the decision made by a statutory body on grounds of procedure and natural justice. In this case the landowners would have the locus standi as the aggrieved party.

The major problem concerning the landowners today is the lack of financial gains from their land, they are left in a situation where there is no benefit coming to them their way of living has not improved compared to their tenants who have progressed rapidly. Increasing the amount of rent will not solve the problem but will widen the gap between the landowners and the tenants. Further still, the non-renewal of ALTA leases will also not assist anyone because if the demands are high and the leases are not renewed then the tenants will not be able to afford the land hence they will leave it forever.

The above mentioned are some of the problems affecting the landowners but there may be more. In order to overcome some of their problems, most of the landowners have entered into "vakavanua" arrangements means according to custom arrangements away form the "grips" of the NLTB This is illegal because it is outside the provisions of the Act, but if it is customary then how can it be illegal?

Let us summarise the main advantages and disadvantages of vakavanua dealings. The main advantages are:

1. Landowners to deal directly with the tenants so there is no deduction of 25%, more money to the landowners;

2. Landowners and tenants working in partnership can result in increased productivity on the land;

3. In the case of differences or disputes, there are mechanisms for their resolution

The major disadvantages are:

(a) Any agreement made will be illegal, so the obligations of defaulting party cannot be enforced.

(b) No damages or compensation payable to the innocent party under illegal contract.

(c) The dealings could lead to confrontation in case of conflicts, with no civil redress available to either party.

Ownership of Natural Resources

The main legislation in Fiji dealing with the ownership of natural resourcdes are as follows:

1. Forestry Act Cap. 150

Section 36 specifically protects the exercise of Fijian customary rights in cutting or gathering and removal of timber, and other forest produce recognised under custom. The legislation, however, does not provide for reforestation or compensation for disturbance/damage to land. Under Section 25, the Conservator of Forests shall receive all the royalties who will pay the NLTB for distribution to the beneficial owners. The NLTB will as provided under the Native Land Trust Act deduct 25% and forward the balance to the "matagalis" for distribution. After a further deduction of 30% the members receive the rest.

2. Mining Act Cap. 146

Under Section 3 all minerals including crude oil under all land is to be the property of the Crown, this means that minerals and crude oil is not part of the Fijian culture and tradition. The very fact that minerals and crude oil are part of the land which is owned by the landowners seems to be immaterial here.

There is a provision for the payment of compensation for all damage done to the surface of any land, but it is not known whether the payment can be made directly to the landowners or to the NLTB in which case the landowners will lose 25%.

A major achievement for the landowners is section 186 of Constitutional (Amendment) Act 1997, which provides for the payment of royalties to the owners.

3. Fisheries Act Cap. 158 

The Act does not provide for procedures regulating commercial fishing, the payment of royalties and so on.

In considering the above legislation, once again the landowners do not receive much as the owners of natural resources, the Constitutional provision is a relief in regards to payment of royalties but it is not known whether the payments will be made directly to the landowners or to the NLTB. In each case, there will be a different amount received by the landowner. In all legislation's where there is disturbance/damage caused to the land, compensation should be provided to the landowners.

Furthermore the legislation governing customary land tenure systems in Fiji, including the above, is outdated and thus seriously in need of revision, especially in the area of punishment for infringements should be increased to act as a deterred. Currently it is simply not adequate.

Customary Land Dispute Settlement in Fiji

 Unlike most other Pacific Island countries there are few disputes about ownership of native land in Fiji. This is because the boundaries of native land have been registered and the extent of the land held by each landowning group has been established for sometime.

Section 4 of the Native Lands Act established a native land commission which has the power to determine in cases of disputes the rights of each landowning group in Fijian land, to record boundaries to such a land, settle disputes about the head of a matagali or other customary land owning group. Under Sections 4 and 5 of the Native Lands Act Cap. 133 the Minister of Fijian Affairs shall appoint one or more commissioners in the Native Land Commission, the role of each province in which the said commission is conducting an inquiry shall be ex officio member of the Commission, furthermore the Provincial Council shall elect one or more persons to sit as assessors at the sittings of the Commission for the purpose of conducting inquiries. Appeal can be made to the Appeals Tribunal within 90 days of the decision of the Commission under Section 7(1). Unfortunately, the chiefs do not play a formal role in settling disputes before the NLC hears the matter.

Disputes under the Agricultural Landlord and Tenants Act (ALTA)

Matters arising under ALTA are to be dealt with in the first instance by the Agricultural Tribunal Section 42, furthermore an appeal is possible under section 48 to the Central Agricultural Tribunal. No further appeal is provided in the legislation, however, it is possible to seek a judicial review of the decision of the Central Agricultural Tribunal a grounds of procedure and natural justice to the High Court of Fiji.

Protection of Custom and Customary Land tenure by the Constitution of Fiji

Fiji has recently acquired a new Constitution to replace the 1990 Constitution. In the 1990 Constitution article 100(3) recognised the Fijian custom as part of the laws of the country, however, this is not so under the Constitution (Amendment) Act 1997, so customary law is no longer formally recognised as a general source of law.

However, by virtue of article 195 (2) (e) customary law, which was accepted prior to 1997 Amendments, is enforceable. In regards to the legislation's governing the Native Lands, a special procedure is required to be followed under Article 185 of the Constitution for amendment. So if the landowners want to change the legislation they have to follow the procedures set up in the Constitution. Basically the Customary Land Tenure System is protected in Fiji for the time being because only an intensive consultation with the landowners and seeking the support of the political leaders in the upper and lower house can change the present situation. It will be an uphill task to achieve the majority required to amend the legislation's.

According to the Editorial comment of the Fiji Times of 27-01-1999 the NLTB has failed in its duty to administer native lands in the interests of the landowners. "It has done little over the past years to show that it is a responsible trustee". To its credit however, the NLTB has a restructuring and downsizing exercise but the result will only be seen in the year 2000. Does this also include the reduction of the 25% of the administration charges is not known? If the NLTB had acted responsibly then the problem of landlessness would not have arisen.

According to the Fiji Times of 6th March, 1999 there are 5520 Fijians who are landless - source is the Native Land Commission. To overcome this problem they will now convert Crown Schedule A and B to native land. But there is no mention of any investigation been carried out as to how this would have eventuated in the first place. If the landowners say 'no' to the renewals then the lease can not be renewed. The demands from the landowners have been exorbitant which also discourages the tenants. Once the landowners agree to renew the leases the NLTB will grant the lease.

In the case of Hari Prasad Mintar v NLTB (unreported Fiji High Court, January1999) the High Court of Fiji made it clear that the payment of compensation under ALTA was a matter for the Agricultural Tribunal which did not justify the tenant staying on the land after the existing lease. However, in regards to the payment of compensation under ALTA, Section 40 clearly states that a tenant is not entitled to obtain compensation unless the improvements on the land were consented by the landlord (NLTB) . The question is how many tenants had sought the approval of the NLTB Do the tenants have any rights to claim compensation under this section for improvements carried out without NLTB consent. This matter is to be tested before the Agricultural Tribunal and the Courts in Fiji in respect of improvements that were carried out in pursuit of the purpose for which the lease was granted. Until there is a decision made on this issue the tenants under ALTA will not receive any compensation for improvements carried out without the NLTB consent.

If on the other hand improvements were carried out with the consent of the NLTB then compensation will be paid to the landowners minus the following:

1 . Any rentals due to the landlord;

2. Damage committed or permitted by the tenant or non-fulfilment by the tenant of his/her responsibility to farm in accordance with the practice of good husbandry and so on.

On the 19-12-1998 the Fiji Times highlighted the case of some Fijian Landowners selling their native leases to Indians for quick cash under "vakavanua" arrangements. The price range has been $ 10,000 to $20,000. The landowners say that they found it difficult to cultivate the land since they lacked proper farming machinery, so the only option was to sell it, get some hard cash rather than leaving the land lying idle. Joji Naliva, one of the landowners who sold his land, sounded a warning that if the landowners who were thinking of taking over their land after the ALTA leases expired should expect the worst if they were not prepared.

Conclusion

The control of all native lands is vested in the NLTB, which makes the decisions for the landowners, but without consulting them. The relationship according to the Native Land Act is one of trustee and beneficiaries yet the beneficiaries are not consulted on matters affecting them. As already seen the members of the matagali or the matagali itself do not have the locus standi to bring out an action against the NLTB. Although there are other remedies available, however, the legislation has deprived the right of the landowners in suing the NLTB in their personal capacity or as a landowning group. The cost involved for a judicial review is expensive therefore a deterrent to the landowners as majority of them are poor. The role of the landowners is that of being the "shadow" or the "instruments" of the NLTB, the legislation's governing the natural resources directly shows a disregard to the Fijian culture and traditions. On the "white paper" the landowners have been given the recognition but this is not so in reality, most of the landowners do not know what will happen to their land because they do not participate in the decision making process. The NLTB deducts 25% and there is a further 30% deducted before the members receive their share. The amount finally received may not be much because of the number of members eligible to receive their shares.

The current crisis in Fiji can therefore be attributed to the current system, the decision by the landowners not to renew the expiring leases under ALTA is justified because they don't receive much financial benefits after all. They will be better off using their own land and earning an income for themselves. The NLTB has for very long enjoyed itself by "riding on the shoulders" of the landowners, times are changing the landowners sooner or later will discover the importance of their role in the real sense. Its now or never, the concerns of the landowners must be heard they need a fair share of the "cake" which rightfully belongs to them.

It is suggested that the following recommendations might be considered:

1. Update on the legislation's dealing with the Native Lands in Fiji.

2. NLTB to reduce their 25% administrative fees, needs to be downsized or dissolve the NLTB completely.

3. New legislation's to incorporate the participation of the landowners in the decision making process

4. Vakavanua arrangements to be made legal

5. Chiefs to play a formal role in dispute settlement before the matter can be heard by the Native Land Commission.