49322 Questions Contact j4p@worldbank.org May 2009 Volume 3, Issue 1 Coercion to Conversion: Push and Pull Pressures on Custom Land in Vanuatu by Justin Haccius1 Introduction Land ownership and use in the new What is J4P? Custom land-holding remains the republic was to be based on the rules of Justice for the Poor is a foundation of land-ownership in Vanuatu. custom.3 The constitutional recognition of global research and Over 98% of land remains under custom- custom, however, has struggled to find a development program landholding, and over 80% of the workable manifestation in practice. Ni- aimed at informing, population live on custom held land.2 Other Vanuatu reflect, with some bitterness, that designing and forms of land-ownership derive from temporary legislation introduced to supporting pro-poor custom. Custom land may be converted manage the return of land to custom- approaches to justice into registered leases (limited to 75 yrs) as owners, today continues to facilitate the reform. It is an has already happened to much valuable conversion of land back into registered title approach to justice land on the two main islands of Efate and and foreign ownership. reform which: Santo as well as in coastal areas of the outlying islands, or it may be converted This paper describes some features of · Sees justice from the into State land for government use. custom landholding. It evaluates elements perspective of the of the process by which custom land is poor/marginalized Developed areas are located around prime converted into registerable form, and tourist spots and beachfront properties · Is grounded in considers how the judicial system is placed social and cultural near the main towns. These areas are to resolve disputes involving custom contexts generally leased by foreigners or citizens of landholders in a context where the foreign extraction and sub-divided into framework for the recognition of custom is · Recognizes the allotments to build holiday homes and under-developed. importance of resorts for foreigners. This is a process demand in building often associated with acrimonious land Certain commentators argue that custom- equitable justice disputes and accusations of exploitation of landholding is inherently incompatible with systems ni-Vanuatu, amid murmers of a post- economic development. Others disagree colonial land grab. On the other hand, pointing to success stories and arguing In Vanuatu, Justice for tourism and construction are two of the that a purely economic analysis dismisses the Poor is called Jastis biggest private sector employers in a Blong Evriwan the benefits, also inherent in custom- country short of paid employment. landholding, of community and culture.4 · Understands justice Wherever one stands on this debate, what as a cross-sectoral The return of land to the indigenous is clear is that the process of converting issue custom land-holders became the rallying custom land into registered leasehold is cry that united diverse ni-Vanuatu interests fraught with dispute, disillusionment and * to achieve Independence. In 1980, the controversy. The current process is sharply Constitution of the newly-established tilted toward the structures of the formal republic returned all land to custom- system and the interests of those who owners, at a stroke revoking revoking have access to that system with the result rights to land held by settlers and that (i) custom landholders are often plantation-owners. This has been the start, excluded from equitable participation in the rather than the end, of many problems. development of their land, and (ii) 1Thank you to Daniel Adler for helpful comments and attempts to use the legal system to editing support. respond to these problems are frustrated. 2Making Land Work, vol.1, p.4, vo.1, Making Land Work, AusAID publication 2008. 4See response of Dr Jim Fingleton et al (`Privatising 3Article 74, Constitution of Republic of Vanuatu. Land in the Pacific ­ A defence of customary tenures') to Prof Helen Hughes et al (`Aid has failed the Pacific') Accessing Land under Custom allows for shifts in power between groups The great variety of custom is rightly and individuals. Under custom, surplus held up as a unique and astounding land could be divested to build power feature of Vanuatu culture. Rules of land bases, the flexible transfer of land-use ownership, use, transfer and inheritance rights allowing for and maintaining the vary considerably. Emphasis on the fabric of social relations. variety, complexity and fluidity of custom, however, tend to undermine its On the other hand, where a system is claims as a feasable basis for a national based on multiple, transferable land use system of land administration. While rights, there are more interests and Article 74 of the Constitution promised individuals involved. The shifting cultivation that "The rules of custom shall form the practised in Vanuatu means that new basis of ownership and use of land" it did garden plots need to be created every few not specify which rules these would be. years. In a system based on subsistence "For ni-Vanuatu, land is agriculture once a family has enough land It is also unclear what exactly is custom. to use what land they own becomes less of more than simply a Christianity and colonialism transformed an issue. This flexible system changed existing structures. They undermined when the colonial system of landownership commodity to be used traditional leaders authority, and was introduced. The contrast is between established chiefs with new powers over the modern system with its emphasis on for gain and to be larger villages whose people were clarity and land as an economically collected from their lands to facilitate productive asset and the flexibility and disposed of when it has both administration and proselytising. social embeddedness of custom Much of the vacated land was given over been stripped of value" to copra plantations further confusing This contrast explains the terminology used in this paper. Where land is wholly within Sethy Regenvanu boundaries and ownership. Many landowning families simply died out as the custom-system, it makes sense to talk series of epidemics ravaged islands with primarily of 'custom land-holding' and first Minister of fatalities up to 95%. Such is the 'user-rights', once the formal colonial background to many land disputes in system impacts upon it, 'custom- Lands, Vanuatu. ownership' becomes more pertinent. (`Vanuatu' USP1980) In fact, however, there are Custom System vs commonalities in custom systems of Formal System land-holding to build on, particularly when contrasted to the formal land The classic modern response to the registry system introduced by the contrast described above is to build `the colonial administration. Most clear, is the rule of law'; that is a formal regulatory strong cultural and spiritual affinity that system (either unitary or federal) in ni-Vanuatu have with their place of which there is a clear hierarchy of norms. origin. Land is generally owned by a The Constitution of the Republic of family group, with allocations for use Vanuatu represents an attempt in this made by a patriarch, although moving respect with its recognition of custom northward in the country it seems that ownership under the state system. In land is owned within a larger community practice, however, custom has its own than in the south. legitimacy separate from state law and conversely the state has struggled to Another common feature is of the devise practical ways to affirm and contrast between land-use rights and recognize custom. Vanuatu thus displays land-ownership. Land ownership is a situation in which "several legal orders important but is in a sense unassailable coexist irrespective of their mutual and cannot, in the ordinary course of recognition" or "strong legal pluralism" events, be transferred or sold. The (von Benda-Beckmann 2006:59). Far multiplicity of land use rights, however, from being a matter of mere allows interests in land to be divested, ethnographic curiosity, legal pluralism in creating bonds between groups. It Vanuatu is a significant development permits access to different resources and issue. 2 Vanuatu custom landholders are keen to Verifying the Custom-Owner access the benefits of development, to achieve schooling for their children, to The procedure that has been adopted by "All you have to do improve their land, build better houses and the Department of Lands to ascertain the own mobile phones. Accessing such benefits custom owner is to request verification is find some old means entering the cash economy. As banks from the relevant chiefs. This introduces a will not lend against land where the new problem for there are many disputes man, listen to ownership cannot be clearly verified and paid as to who has the right to carry the title of jobs are scarce a significant route to cash is to chief. As the formal system gradually everything he has 'sell' land to an investor who will register a assigns more powers to chiefs, so the lease.5 position becomes more desirable. Disputes to say, change it a over whether the right chief has been identified may end up in the courts and bit and then you The formal system dislikes diffuse groups of take years to resolve. Some chiefs are owners with unclear rights. Registration known to charge fees for signing the have a claim" requires that an owner or owners be required forms, and are clearly open to identified out of the group of custom-rights inducements. In short the process offers Chief Seth, Tanna holders. This can be extremely complicated, little assurance as to whether the correct for example, if a patriarch controls land that chief signed, whether the correct custom is inherited along matriarchal lines, ie by his owner was identified, or whether the land wife or through the female line; who should was correctly delineated. be the owner? There are no wills or clear sub-divisions of land between progeny in Push and Pull to Conversion Vanuatu custom systems. The problem is exacerbated by a breakdown in the system At Independence, legislation was of arranged marriages which controlled the introduced allowing the Minister of Lands pool of people who could make claims to the to deal in disputed lands. The purpose was land (to those with compatible custom(s)). to allow the Government to protect the The erosion of this social practice means that agricultural production, on which the outside groups can come in with claims, country's economy rested, by leasing perhaps according to different custom plantations back out to the previous practices. Features of Vanuatu society such owners even while custom-owners where as adoption and migration further complicate disputing who the land should be returned matters. Absent an agreed hierarchy of to. The power of the executive to deal in norms, there is no institutional way to land is now applied to any land considered resolve these issues. to be in dispute. From the nature of custom land-holding described above, it is Another set of issues emerge among the clear that there are potential disputes with custom right holders to a particular piece of regard to almost any piece of land. Absent land. When formal transactions (leases) are effective checks and balances this wide registered it is generally the case that only ranging power is open to abuse. A dispute the closer family of the person registered as can be created and the matter referred to the custom owner benefits. This group may the Minister for action. A recent attempt to endorse the transaction but family members remove this power by Private Members Bill with less strong ties and non-owners with in December 2008 was rejected on the usage rights will be dispossessed as leases grounds that disputes could not be allowed inevitably give rights to exclusive possession. to hinder development. Thus a land holder with non-exclusive rights becomes a `land owner' and sells something Various other features of Vanuatu he never had ­ a right to exclusive legislation act to disempower custom possession. Others with custom rights to the landholders. For example, depending on land will need to find other areas from which the conditions of a lease, leased land may to sustain themselves and may be aggrieved. be sub-divided into plots and built on The legal system offers little prospect to without the land owner's consent. challenge the lease so disputes end up being Protective conditions exist in the legislation played out within and between custom but these can be excluded from leases by groups. negotiation. 1 1Leasing land is called `selling' perhaps reflecting the view of most ni-Vanuatu that it will not be returned. Ironically, the only way to be formally recognized as a custom-owner under the Vanuatu system is to sell land. The custom-owner will then be entered into the Register as the recognized lease-holder. 3 The above describes a situation where Substantial inducements may be offered law and administrative procedure have that appear to be for the benefit of the failed to provide a framework for whole community. Property deals are equitable dealings in custom land. sweetened with promises of 5-star hotels Because this structure is enshrined in that will offer employment to whole legislation and government procedure, communities. Such promises are rarely however, it is very difficult to challenge fulfilled and often unenforceable. Land the leases it produces. They are remains empty in the hands of a considered lawful within the formal developer waiting for more lucrative system although they may be deeply opportunities that are unlikely to include unjust in custom. As the courts see the custom-owners. "There will always custom as subordinate to the formal law they will generally confirm leases and It is true that unscrupulous land be people wanting to dismiss grievances based on custom. developers and ni-Vanuatu can collude in exploiting ignorance and inequities to get more than a The inequities of this system are deprive custom groups of their land. Less compounded by 'soft prejudices': impacts remarked, however, are well-intentioned good deal, who will and attitudes that further disempower investors and custom-owners seeking the custom owner engaging with the equitable development who are take advantage of a formal system. frustrated by a legislative architecture that does not support the representation seller's lack of Custom-owners need a quick sale. of group interests in a way that allows Seeking better offers, marketing land or land to be developed free of acrimonious knowledge and prolonging negotiations is as likely to disputes. produce contesting claimant owners understanding of the attracted by a cash sale. At best, this Jastis Blong Evriwan aims to play a may put off an investor or plunge the supporting role in the land reform true value of what contesting custom-owners into an process. To do this the program is expensive dispute. At worst, the Minister supporting research on ways in which he is selling. At the of Land may step in to do the deal, customary ownership could be engaged cutting out the custom-owner. The to facilitate equitable development. At same time, nobody situation in effect creates tenure the same time it proposes a dialogue to insecurity for the custom owner and thus highlight the ambiguities and inequities forces some one to puts in place incentives for secretive or in legislation and processes which sub-optimal transactions. impede fair negotiation at the interface lease his land." of custom and formal systems. There is also an absence of freely ` Bibliography Douglas Patterson, available information on Vanuatu land law and procedure which custom owners Benda-Beckmann (von), Franz (2006) `The Multiple Edges of Law: Dealing with (National Land could access. For custom-owners in the Legal Pluralism in Development Practice' Summit Annex 2006) outer islands, lawyers are not available without an expensive visit to one of the in Caroline Sage & Michael Woolcock urban centres. For all but a small elite of (eds) The World Bank Legal Review: ni-Vanuatu, costs of expert advice are Law Equity and Development, Vol. 2, prohibitive while opportunities to earn World Bank, Washington DC, USA. cash income are few. Most legal information is passed informally, by word Further Information of mouth. This has allowed certain legal Visit our website: ambiguities to be perpetuated which www.worldbank.org/justiceforthepoor mislead custom-owners, but not land developers who have long-standing Questions? relationships with the legal profession E-mail: j4p@worldbank.org and good access to accurate legal advice. Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank. 4