ROTUMA LAND DISPUTES: A PERSONAL VIEW POINT
by Sosefo Inoke
This article is not intended as legal advice.
Readers must seek their own independent advice on the issues
raised and in respect of their particular circumstances.
1.00 INTRODUCTION
One of the things that we must do is to fix our land ownership problems.
It is a fundamental requirement for development. Until we can resolve
our land issues and set up the processes and procedures for the proper
settlement and resolution of our land disputes I believe we cannot
effectively progress. It is a problem that we must face up to now
and deal with.
Some of us, maybe a lot of us, would prefer to let 'sleeping dogs
lie'. But the trouble I see with sleeping dogs is that they are likely
to wake up at the most inconvenient time, vicious and uncontrollable.
Lets face it land disputes have been with us well before colonisation.
You only have to look at our hanuju.
In this essay I will only deal with the issues on resolution
of disputes by the existing formal processes. Other matters
pertaining to land will be the subject of another essay.
This essay is based on my personal experiences, observations and
views.
2.00 LAND DISPUTE RESOLUTION
2.01 Existing Problems
Some of us that have dealt with or been involved in land disputes
know of the unsatisfactory situation that exists at the moment. Disputes
are not being fairly and properly resolved with any certainty and
finality. Some disputes are left up in the air and unresolved. Quite
often the situation is worse than it was before the attempts to resolve
it. There is confusion as to how disputes are to be commenced as
well as to the appropriate tribunals or forums to hear them. The
procedures as to appeals are also uncertain and ineffective. There
is also in my view unresolved fundamental issues as to the powers
and jurisdictions of the tribunals and forums that are making decisions
at the moment. If all these problems exist then there is no wonder
that disputes are not resolved fairly, properly and with certainty
and finality.
3.00 RESOLUTION OF DISPUTES AT FIRST INSTANCE
3.01 What Tribunal or Forum?
There are at least two ways that are presently being used to resolve
disputes at first instance. You may bring an action in the Courts
in Fiji or refer it to the Rotuma Council of Chiefs (RCC).
3.02 The RCC appointed tribunal
In the latter procedure, the dispute is raised with the local District
Chief who then raises it before the RCC in the Council's monthly
meetings. The dispute is taken back to District level where it is
announced at all 7 District meetings and objectors invited to appear
at the hearing on a date no earlier than 3 months. The District Officer
and two RCC members, selected by the RCC I presume, then hears the
dispute and makes a ruling. Those of you that have read transcripts
of past land decisions will be aware that in the past the District
Officer hears the dispute with two Rotuman assessors, not necessarily
RCC members.
3.03 Uncertain Legalities
This was the procedure used in the past and has been continued despite
the enactment of the Rotuma Lands Act which deals with all
land matters. This procedure does not appear in the Act. However,
it seems to be an adaptation of the procedure set out in it. The
Act provides for the appointment by the Prime Minister of a Rotuma
Lands Commission which hears and determines disputes. I will
say more on this later. Apart from the uncertainty as to the legal
basis and framework of the existing procedures, there is no guarantee
of impartiality or independence in the makeup of the tribunal. The
appointment of the tribunal members by themselves as it were is suspicious
to say the least. I am not saying that the members are biased but
like they say justice not only needs to be done, it must also be seen to
be done.
3.04 No Formal Rules
Further, I know of no rules as to how the tribunal is to receive
evidence and hear the dispute. For example, whether the tribunal
can compel parties and witnesses to appear and give evidence on oath.
I know of one case where the other party deliberately stayed away.
In normal court cases the court may go ahead and make its decision
based on the evidence from the party appearing before it. This was
what the tribunal did. But then the party that deliberately absented
itself turned around and appealed the tribunal's decision. One of
the grounds used for the appeal was that it was not given the chance
to be heard. That appeal looks like never being heard so the dispute
remains unresolved. The disputed land is tied up and unable to be
used.
3.05 Using the Courts
Parallel to the above is the court system. Both the High Court and
the Magistrates Court in Fiji have been and are being used at the
moment. This is despite the fact that the Rotuma Lands Act,
in my view, vests jurisdiction in respect of all Rotuma land matters
with the Rotuma Lands Commission. More about this later.
3.06 Possible Misuse
As there are no clear or any guidelines as to how the Courts and
the RCC appointed tribunals are to operate, the system is open to
abuse by rogue litigants. For example, it is possible to have the
High Court grant an order (injunction) preventing a hearing before
the RCC appointed tribunal proceeding, effectively frustrating the
resolution process. Sometimes a litigant sees his chances of a "win" better
in a court than in another tribunal so he would take all necessary
steps to have his case heard in a court. It is also open to a party
dissatisfied with the decision of the RCC appointed tribunal to appeal
against that decision in the High Court. That appeal may take years,
irrespective of its prospects of success, and this too may be used
to frustrate the resolution process. Similarly, for appeals from
the Commissioner Eastern.
4.0 APPEALS PROCESS
4.01 Duality of Processes
Again there at least two ways that an appeal can be brought. The
first is by way of the High Court as I have referred to above. The
second is to the Commissioner Eastern. There is also the possibility
of a further appeal from the Commissioner Eastern to the High Court
of Fiji.
4.02 The Courts.
Again, the High Court in Fiji is being used despite the uncertainty,
in my view, as to its jurisdiction and powers. This matter has not
been raised for decision by the Court because it has been assumed
that the Court has unlimited jurisdiction and powers over Rotuma
land matters.
4.03 The Commissioner Eastern
The origins of this second method, like the RCC appointed tribunal,
appears to be an attempt to follow the Rotuma Lands Act. The Act
provides for appeals to be heard by the Commissioner Eastern sitting
with two Rotuman assessors appointed by the RCC to advise him. I
am not aware of any appeal that has been decided in this way despite
the referral of several appeals to him.
4.04 Uncertain Legalities
The problems inherent in a system with no clear legal basis or framework
are also present. For example, I am not aware as to the rules of
appeal and to the Commissioner's powers e.g. whether he can rehear
the matter and admit further evidence or is he limited to deciding
whether the decision appealed from is a reasonable one. All these
uncertainties do not lend themselves to an effective system for dispute
resolution.
5.00 ROTUMA LANDS ACT
5.01 Rotuma Lands Commission
I have mentioned earlier that there is a piece of legislation called
the Rotuma Lands Act which deals with Rotuma lands. This Act
sets out the law relating to all matters on Rotuma lands--from land
ownership, registration and dealings to resolution of land disputes.
The Act provides for the appointment of a three-member Rotuma
Lands Commission (RLC) by the Prime Minister. One of the functions
of the RLC is to hear and determine land disputes. Unfortunately,
to date there has been no RLC appointed. This has created much of
the confusion and the problems that I have referred to above.
5.02 Jurisdiction
The Act I believe gives the RLC exclusive jurisdiction in Rotuma
land matters. It "charges the RLCwith the duty to decide
all disputes" on land ownership. The Act also provides for an
elaborate system and procedures for the hearing and determination
of disputes and appeals. For example, notice of the dispute is to
be given not only in Rotuma but in Fiji as well so that all interested
Rotumans are made aware and have the right to appear and be heard.
Further, the Commissioner Eastern's decisions on appeals, according
to the Act, are to be conclusive and final. What all these
mean is that the RCC appointed tribunal has no powers to hear and
determine land disputes. Similarly, the Courts, to hear disputes
at first instance, and, except in a very limited way, to hear appeals.
The fact that the RLC has not been appointed does not in my opinion
change the situation. If I am correct then all the decisions that
have been made on Rotuma land matters since the Act came into force
are invalid and may be set aside by the High Court of Fiji.
5.03 Finality
The end result of all these is that disputes are not being and will
not be determined with any finality. One of the basic elements of
any system for resolving conflicts is that the resolution of the
conflict must be conclusive and final. Otherwise it will not bring
an end to the conflict. The lack of finality will also create other
problems. For example, people will have no confidence in the system
and will not use it to resolve their disputes and will even ignore
its rulings and findings. What we have at the moment is not far off
from this situation.
6.00 CONCLUSIONS
It does no take much observation to conclude that our land disputes
and ownership issues are not being properly and conclusively addressed
and resolved. The multiplicity of tribunals and forums with serious
uncertainties as to fundamental legal issues such as their powers
and procedures do not lend themselves to an effective system of conflict
resolution. It is a disputant's nightmare and a lawyer's delight.
I am not an alarmist but I believe land ownership will be in chaos
unless something is done now. The appointment of the Rotuma Lands
Commission must be done immediately as it is vital to the effective
resolution of land disputes. Equally as important is the registration
of land ownership and dealings which is the other function of the
Commission. So long as we choose to ignore it I believe our social,
political and economic development will be hampered. The little land
that we have will be tied up in unresolved feuding and will not be
used to its full potential, or worse, benefit only the few that have
access to good lawyers and powerful political friends.
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RESPONSES
From Major-General Jioje Konrote (18 April 2002)
I have read Sosefo Inoke's article on Rotuma Land Disputes with
great interest. How I wish all our kainaga (particularly the chiefs
and elders ) could read it and understand what he is trying to say,
but more importantly do something to improve how those in authority
are presently trying to deal with the issue.
Regrettably I have followed so many faeag
hanua which ended up in more confusion, animosity and disillusion
in the system amongst our people because of the absence of a legal
forum under the existing Rotuma Act to adjudicate fairly and come
up with an acceptable outcome.
Yes, you are quite right. What we need is the immediate appointment
of a Rotuma Land Commission as the present status quo is a disputant's
nightmare and a lawyer's delight, to use your own words. I strongly
believe that this a priority issue which warrants the immediate attention
of the Rotuma Council and whoever is going to replace Paul Manueli
as our representative in Parliament.
From Tevita Katafono in Sydney (2
November 2002)
It is to my great regret that I didn't read this article earlier,
for it is about the most important issue that Rotumans have to face
today, whether they like it or not. It would seem that the dogs are
not just lying , they are in deep sleep and it is high time they
be awakened. As a lay person with matters regarding the legal system,
I thank the learned Sosefo Inoke for his clear and simple presentation
of facts and arguments; regrettably the problem at hand cannot be
seen in the same light. Can someone update me as to the latest on
the Rotuma Lands Commission? Has there any progress in the appointment
of such a body? It baffles me as to why there is such delay in establishing
the RLC--that's of course if there isn't one already appointed yet.
With my limited knowledge of Rotuma land ownership, I believe it
would be an enormous undertaking for the RLC in resolving land disputes,
given the fact that our land ownership goes hand in hand with family
lineages, which can span back generations. Needless to say, a dispute
over one parcel of land can literally involve half the population
of the island. I would imagine that there is a legal framework within
which the RLC would work, and I guess that this would include such
requirements as the establishment of clear and definite land boundaries.
This I believe is as highly contentious a matter as the ownership
of land, for not only are we dealing with disputes over single parcels
of land, but we are likely to involve disputes with neighboring owners.
I admire all those who are actively pursuing this task and can only
offer you my moral support. I am not sure if this issue is on the
current agenda within the Rotuman community, but I hope it is, for
as Jioje Konrote stated, this is a priority issue which warrants
immediate attention.
From Henry Enasio, Sydney Australia
(31 May 2005)
Sosefo has written a brilliant article expressing his personal opinion
with regard to land disputes.
Upon reading The Rotuma Lands Act, I have to concur with him that
there are a lot of uncertainties without any clear jurisdiction to
resolve the land disputes in Rotuma. For without the Rotuma Lands
Commission to hear disputes, the Act is opened to interpretation
and confusion. It's definitely convoluted and a legal quagmire,
which is to our detriment but of financial benefit to the legal profession.
However, having said this, to quote The Constitution Amendment Act
1997 C13 S186(2) Customary laws and customary rights:
"the Parliament must have regard to the customs,
traditions, usages, values and aspirations of Fijian and Rotumans
."
This reiterates the Rotuman Group Rights of Customary Laws and Rights.
I am of the opinion that the Act is quite clear, and that Parliament
must take into account all those values which leads me to believe
that a Rotuma Lands Commission must cater for these too, including
an understanding of:
1. The make up of our society, focusing on the family unit
rather than the big picture and its entirety; this will assist
in an understanding of the Acts.
2. The meaning of hanua pau, hanua
ne kainaga and hanua ne 'on
tore under customary laws.
For this purpose, the core family is usually the parents;
then comes the children, grandchildren, and great grandchildren,
and the extended family is where we have the uncles, aunts, nephews,
nieces, cousins etc.
Accordingly, a couple is the husband and wife, and when children
are born to them we say iria 'es lelea' ne
'es tor. Also when their
children have children of their own we say the couple ma
'oria ma'ma'piag ne 'es tor and so on. To simplify this,
Rotumans use the terms, pau, tore, and kainaga.
For further illustration of the above :
| |
Parents |
2nd Generation |
3rd Generation |
4th Generation |
| Pau |
No child |
|
|
|
| Tore |
1 child--> |
1 grandchild---> |
1 great grandchild--> |
1 great-great grandchild |
| Kainaga |
>1 child--> |
Many cousins (extended family)---> |
kainaga--> |
kainaga |
Thus:
1. Hanua Pau
is commonly known as freehold land and under our Customary Laws;
the parents have the right to dispose of the land as they wish
or see fit, provided that a document
is deposited with the D.O detailing the transaction. Our Customary
Laws also dictate that hanua pau automatically
becomes either
hanua ne 'on tore or hanua
ne kainaga, depending on the number of
children and grandchildren born in the second and the third generation
and thereafter, given the first are always that of the parents.
2. Hanua ne 'on Tore
is when the hanua pau or the freehold
land is passed on to an only child at the death of the parents
and to an only grandchild at the death of his/her parents and to
an only great-grandchild at the death of his/her parents, and so
on. Rights in the land are also passed on accordingly and the rights
of disposal are similar to that of hanua
pau.
3. Hanua ne Kainaga
The freehold land or hanua pau automatically
becomes clan land or
hanua ne kainaga when more than
one child is born to the parents and more grandchildren and great-grand
grandchildren are born. Our long standing tradition of Customary
Laws and Rights are that all clan members have an undivided ownership
with indivisible rights to the land where an appointed overlord
(pure) oversees it. Our Customary
Laws also protect the members' rights from any deceptive action
of the overlord in that tradition dictates that the right of
disposal of hanua
ne kainaga or clan land rests entirely
with the full agreement of the adult members of the clan who
are aged 21 years and over in Rotuma and Fiji.
Thus, in the absence of the Rotuma Lands Commission, hanua
ne kainaga lands are protected from unscrupulous dealings
in that they cannot be gifted, sold, or bought without the agreement
of all the adult members of the clan in Rotuma and Fiji.
Surely most of us know the different clans we belong to in Rotuma
and the lands owned by our paternal and maternal clans. Thus any
uncertainties with regard to land disputes in Rotuma should mostly
involve boundaries. They should rarely involve the intricacies of hanua
pau,
hanua ne 'on tore, and hanua
ne kainaga when we have long-standing
customary laws, but this I see as more easily said than done.
From Sosefo Inoke, Suva, Fiji (17 June 2005)
I, like many of us, don't understand why the push for registration
of Rotuma land ownership to be the same as that for the Fijians.
There is no basis at law for such a one-sided land ownership system
these days.
If anything, it is against the anti-discrimination laws and the
provisions of the Constitution. I am surprised that the Fijian women's
rights movement has not lobbied the Human Rights Commission to pressure
the government into changing their land ownership laws.
Unfortunately, for the Rotumans the Rotuma Lands Act remains in
the law books as law. Whilst the Rotuma Lands Commission remains
non existent it has no real impact. It should not be difficult to
change the Act because it seems most Rotumans do not accept the law
as it stands. All it needs is our parliamentary representative to
lobby the Government, through the Attorney General, to pass a bill
amending the provisions in the Act dealing with land ownership.
One of the practical difficulties with setting up a Lands Commission
is the cost. It would cost, I would hazard a guess, nothing short
of a million or two.
As the law stands under the Rotuma Lands Act, the Commission decides
virtually all matters on land ownership. These matters could be grouped
into two broad classes: (1) matters relating to ownership and boundaries
on the one hand, and (2) registration of ownership on the other.
If cost is an issue in setting up the Commission, my suggestion is
to set up an ad hoc body to process the registration of lands that
are not in dispute so that these owners may be able to lease or deal
with their lands through trusts and other legal vehicles. My information
is that ownership of the majority of the lands in Rotuma is not in
dispute. Of course there may be some doubt as to the validity of
such registration whilst the Act remains unamended, but at least
future disputation may be avoided in the interim and when the Commission
is set up, most of the ground work would have already been done and
the lands in dispute would have already been identified.
The Rotuman Chief
There is one other matter which goes hand in hand with land disputes.
It is the matter of chiefly title disputes. Your readers might be
interested to read a very enlightening study by Alan Howard titled:
"The Rotuman District
Chief." I was surprised--excuse my ignorance--to learn
that the Rotuman Chief did not hold title for life. There is a growing
belief that the Rotuman Chief held his title for life in the same
way that a Fijian Chief does. The Rotuman Chiefly title is akin to
holding an office in the same way that politicians hold office. The
Chief in the old days could be removed by his descent group for abuse
of office. This puts a completely different light on this,
doesn't it?
I, like many of us, don't understand why the push is for
registration of Rotuma land ownership to be the same as that for
the Fijians.
From Henry Enasio, Sydney Australia (17 July 2005)
In addition to Alan and Jan, Sosefo is another of my favourite
contributors to this website.
For a while I thought we had lost him, but I am glad to read his
contributions again.
A great article which Alan and Jan also wrote is "Ritual
Status and Power Politics in Modern Rotuma," in particular the
section entitled "Rotuman and Fijian Chiefs: A Comparative View."
They quite rightly point out the issue of the duration
of the holder of a chiefly title. Our chiefs can resign or
be forced out of office by the concurrence of the Prime Minister's
Office, which currently includeds Rotuma's portfolio. I am not ashamed
to admit that this happened to close members of my clan from my maternal
side, viz:
1. My grandfather Chief Garagsau Alpat
His father was Vaniak Alpat, who was forced out of office on the
basis of a false accusation that he was having an affair with 'Erteasa.
I want to set the record straight; he did not have an
affair with her as claimed. In fact, Garagsau was set up. Although
they were seen together talking at Rano Ti'u whilst he was enroute
to Rano, nothing happened. But on the basis of that false accusation
he was forced out of office. The incumbent Chief Teviat Apao, who
helped orchestrate it, only lasted about three years until he died,
with a last message asking Garagsau la fau'ak
ia. It was also said
of all those involved with the whole issue that they died mysteriously,
whereas my grandfather lived to a good old age of 86 years. Thus
it reminded me of our Rotuman saying, ana
haunua ma 'on mafa, which
Vilsoni's movie, "The Land Has Eyes," aptly portrays.
Also, a recent happening reminded me of this. As the result of
a fight within my mother's clan, the turn and the title
was handed to another clan. Afterwards, those
who got heavily involved and lied about it died mysteriously too.
The incumbent was plagued with sickness and lasted only about
three years. I believe he only attended about five Council meetings.
My sources also told me that when his sickness got worst he asked
Gagaj Lagfatmaro to consult the spirits and was told that the only
way he would recover was to relinquish the title, which he refused
to do and eventually died.
2. My Uncle Alpat Kaitu'u
He was my grandfather Garagsau's sister's son. He was forced out
of office for cruelty. I have to agree that was the case, and
it has been my mission in life to see that such behaviour
never happens in the clan again. It makes me feel ashamed, for
it has spoiled the clan and our standing in the district of Itu'ti'u.
My advice to any future aspirants from my uncle's family to
the title is to think again.
We should be appreciative of the fact that Alan
and Jan have pointed out to us the intricacies
of the office of district chief. Also, thanks to Sosefo for his timely
reminder of another aspect and cause of Rotuman disputes.
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