43686 Questions? Contact j4p@worldbank.org January 2008 Volume 2, Issue 1 The Price of Tourism: Land Alienation in Vanuatu by Milena Stefanova, Justice for the Poor* Introduction In recent years, Vanuatu's economy has imperative exists to ensure that Ni- What is J4P? advanced significantly reaching nearly 7% Vanuatu become equal participants in growth in 2005 after more than a decade these developments and the subsequent Justice for the Poor (J4P) benefits.1 is a global research and of stagnation. However, this growth is not development program having the impact on the lives of most ni- This briefing note focuses specifically on aimed at informing, Vanuatu that one might hope. Driven some of the challenging effects of designing and supporting mainly by foreign investment in the areas foreign investment on the dynamics of pro-poor approaches to of tourism, financial services and land land use and ownership in Vanuatu. justice reform. It is an development, it is expatriates who are Conflicts about land are potentially approach to justice reform primarily reaping the gains of business explosive and recent historical events in which: development. This lack of inclusive development is becoming an alarming Fiji, Solomon Islands and Papua New Guinea have shown the urgency of · Sees justice from the source of growing economic inequalities, designing effective long-term policy perspective of the dispossession and potentially disruptive responses to these sensitive issues. poor/marginalized social trends. Yet, ni-Vanuatu are not inherently opposed to `community- * The author would like to thank Caroline Sage and · Is grounded in social sensitive' development that can generate Pamela Dale for their assistance in editing the note. and cultural contexts 1 employment opportunities and income Cox, M., Alatoa H., Kenni L., Naupa A., Rawlings G., Soni N. , Vatu C., Sokomanu G., Bulekone V. · Recognizes the sources for the population. While economic 2007. "The Unfinished State: Drivers of Change in importance of demand growth is clearly desirable, an urgent policy Vanuatu". in building equitable justice systems Country Context The governance system of Vanuatu, often the absence of which traditional and · Understands justice as described as inherently fragmented and informal institutions, including chiefs, a cross-sectoral issue patronage-based, reflects the legacy of a churches and social networks continue to dual colonial system attempting to govern perform governance functions at the myriad complex systems of traditional community level. Despite colonial and structures1. With more than sixteen religious influences, kastom continues to changes in government in the years carry considerable respect and authority following independence in 1980, political across Vanuatu society and despite its instability presents an additional challenge diversity is seen as a unifying factor to sustaining reform efforts. establishing national identity. Clan and Geographical constraints further inhibit the family relationships play a significant role state's capacity to govern, making in alleviating hardships through access to traditional service delivery prohibitively communally-owned resources and costly. Vanuatu's approximately 215,000 kastom-based norms which delineate inhabitants are dispersed among 80 islands support of the needy as a social and share a diverse linguistic and cultural responsibility. heritage ­ living under both Christian 1From 1906 -1980 Vanuatu was under the values and kastom2 beliefs, and speaking administration of the Anglo-French Condominium, over 100 local dialects. Formal institutions dominated by rivalry between the two parties. 2Kastom is the mixture of social structures, values, have limited reach outside the capital, in and practices perceived as traditional in Vanuatu. Land `Sales' for Petty Cash Land is arguably the key asset that identifies indigenous owners to recover their land at family, clan and lineage in Vanuatu. It is an the end of the lease if they compensate the asset that possesses great cultural value and leaseholder for all improvements made. is also the main subsistence and livelihood Most ni-Vanuatu are unlikely to be able to source for most rural communities in Vanuatu. cover the cost of even a small Land is also subject to the most common and establishment, let alone a luxury resort. The persistent types of disputes. abuse of the Strata Titles Act5 in its application to rural subdivision of The process of land alienation has a long undeveloped land has further liberalized the history in Vanuatu. The first land boom market, essentially paving the way to a occurred in the 1860s with the establishment permanent alienation of land in Vanuatu. In of European cotton plantations on the islands these cases, entrepreneurs quickly sell off of Efate and Epi. Land development land to third-party buyers for large profits, intensified over the next two decades, leading often frustrating disputes over the original to the alienation of most of northwest Efate. sale of the land. As a result, about 90% of coastal Efate Island is reported to have been "Land to the Ni- Acceleration in agricultural development in subsequent decades and investment-driven alienated, with foreign investment properties Vanuatu is everything land development for expatriate residential enclosing the foreshore and blocking coastal access for communities. Some developments they have, it embodies purposes led to the alienation of over a third of the country's land, with more ni-Vanuatu have raised fences and gates to keep their link to their past, losing access to their traditional lands.1 indigenous land owners from accessing their property. This form of development has their present and their Land loss was a unifying factor and mobilizing become a source of tensions between ni- future. It contains force for the independence movement. Vanuatu and expatriates, posing significant threat to social cohesion and stability. everything they do in Following independence in 1980, the new Constitution restored the perpetual land rights life, that is, their daily of indigenous custom owners and their These different tensions over land transactions are often exacerbated by interactions and their descendants, providing that the rules of custom form the basis of land ownership and disputes over the underlying title (or even beliefs...Not only it is use in Vanuatu.2 While freehold titles were the concept of title6), and the legal powers and responsibilities of the customary sacred, but it totally cancelled and land formally restored to local populations, titles of European planters were owners. The plethora of diverse inheritance contradicts the automatically replaced by long-term leases to practices and land ownership and usage customs, according to which rights are imported notion of accommodate foreign interests. What was originally intended as an interim arrangement passed down orally from generation to `ownership' of land. to secure the rights of those whose titles were generation, often trigger both intra- and inter-community disputes. In such cases, Land is for the people abolished at independence quickly became the norm for the negotiation of new leases the right of granting a lease in exchange of and it is in custody for over customary land.3 As a result, land instance cash can be hotly disputed. future generations".* alienations have emerged again on a scale that threatens the livelihoods of ni-Vanuatu It is reported that in many cases, an and the country's stability as a whole. individual (oftentimes allegedly the community chief or a `custom owner' who Today, many land leases are undertaken has only a marginal right to that label) without the custom owners' full understanding negotiates a lease with a developer, whose of the land's market value, and while legal, authority to deal with the land is later are often arguably concluded under unfair contested. According to the law as conditions. Leases are generally granted for interpreted by the courts, the validity of the 75 years (the life of a coconut palm)4 for a lease is not affected by the associated land single, up-front cash payment (versus annual dispute. While the Department of Lands is rent) set far below reasonable commercial charged with assisting owners in the rates. In the absence of savings traditions, negotiation process and ensuring that the funds are often rapidly consumed. transactions are not prejudicial to the interests of the custom owners, the affected Many entrepreneurs arguably take advantage community and the country7, the of locals' limited knowledge of the law by `landowner' often chooses to divert from this constructing contracts that only allow procedure and settle directly with the developer, thus monopolizing the lease *Joel Cimo. 2005. "Report of the National Review of the benefits and undermining any rights of the Customary Land Tribunal Program in Vanuatu", Vanuatu Cultural Center. rest of the community (such as usage rights) 1 Cox et al, 2007. based on a more communal and subsistence 2 Article 73 and 74 of the Constitution. notion of property. In addition, the Minister 3A Supreme Court decision in 1995 found that while the Constitution prohibited the sale of land, there was no restriction on of Lands has been given broad discretion to granting long-term leases, even if that would deprive the indigenous approve leases where land rights have been owners of their land for several generations. See Supreme Court of contested. This power has allegedly been Vanuatu, Trethan Constructions and Trewr Hannam and Claude Mitride v Philip Malas and Loken Malas 1995. misused, leading to serious corruption claims, 4Land Leases Act 1983. that the ministry was signing leases on 5The original purpose of the Strata Titles Act 2000 was to issue behalf of custom owners without any real titles to units and buildings, not to subdivide rural land and on-lease it to other buyers. See Lunnay, Fingleton, Mangawai, Nalyal and input from them.8 It is reported that 22% of Simo. 2007. "Review of National Land Legislation, Policy and Land the rural leases entered into on Efate until Administration". 6 the end of 2001 were signed by the In particular, there is still uncertainty around the nature of custom ownership, i.e. whether it is group- or individual-based. Minister.9 Following recommendations of the 7 Article 79 of the Constitution. 2006 Land Summit, a temporary moratorium 8 Cox et al, 2007. 9 on the validation of new leases over disputed Farran, Sue. 2002. "Myth or Reality: Case Study of Land Tenure in Efate, Vanuatu". land was enforced. Management of Land Disputes "People are Land is a particularly contentious issue in and ownership of custom land".2 To this end, the around urban areas, where a wave of rural- Government passed the 2001 Customary Land influenced by urban migration has led to a new urban Tribunal Act, establishing tribunals that build poverty. Informal housing has sprung up on existing kastom structures to manage foreigners and start around Port Vila and Louganville in ownership and land boundary issues. In desperately overcrowded areas lacking basic acknowledgement of the diverse traditions in selling their land services such as sanitation and clean water. Vanuatu, the country has been divided into Migrants bring different, often conflicting custom areas and sub-areas. Pursuant to the because they think kastom traditions and practices, causing legislation the composition of land tribunals social fragmentation and placing further varies according to the location of the land and it's easy big bucks. strains on local services. Tensions over land number of villages involved, and involves rights among local owners and migrants from village chiefs and elders. Appeals from But in the future, other islands are posing considerable risk to tribunals are reviewed by a higher land social cohesion. The dynamics in these areas tribunal, be it a single/joint sub-area/custom they are going to are somewhat reminiscent of inter-ethnic area land tribunal. Jurisdiction over a final disputes in urban areas in the Solomon appeal lies within the island land tribunal. have no land and Islands, indicating the potential for escalated conflict if not addressed. The law prescribes that the land tribunal must neither are their determine the rights of the parties in Faced with unprecedented challenges and accordance with custom, but parties may at children." ** social risks, state institutions often turn to any time try to reach an amicable agreement, traditional authorities, which in many and the tribunal must encourage and facilitate respects are deemed by the public to be such efforts.3 Subject to the rights of appeal superior to those of the state, to exercise and rehearing, the decision of a customary conflict resolution functions. Chiefs continue land tribunal is final. However, a decision can to be the main local level authority, dealing be challenged in the Supreme Court if the with dispute resolution and decision-making tribunal did not follow the procedure set out in over community affairs. The National Council the Customary Land Tribunal Act or was of Chiefs (Malvatumauri) enjoys legitimacy decided by an unqualified tribunal member. among both local communities and state authorities, and has successfully intervened While the Act sets out a clear framework for to resolve conflicts among island groups.1 the composition and functions of the land tribunals, a national review completed in 2005 With respect to land dispute settlement, the found that their operation remains limited, new Constitution provides that the perceptions of their legitimacy vary, public government "shall arrange for the awareness of the system is low and lack of appropriate customary institutions or confidence is common. In addition, the procedures to resolve disputes concerning credibility of the tribunals is often contested by Management of Land Disputes, Continued chiefs who feel that their authority is are not designed (capacity provided), there being undermined through the imposition is a danger that those tensions may of new community structures over escalate. traditional layers of authority.4 Disputes also arise over the legitimacy of the **Kim Thomas, "Vanuatu: Islands of Sunshine and Shadows". chiefs called to preside over the tribunal.5 The Press, Saturday, 6 October 2007 1 The Constitution also provides the National Council of Chiefs with a "general competence to discuss all A further problem arises with respect to matters relating to custom and tradition" (Art. 30(1)). the capacity of traditional authorities to 2 Article 78(2) of the Constitution. 3 deal with the more serious land disputes Customary Land Tribunals Act 2001. 4 Joel Cimo. 2005. "Report of the National Review of outlined in this paper. With the advance the Customary Land Tribunal Program in Vanuatu", of foreign investment and rapid Vanuatu Cultural Center. urbanization, communities in Vanuatu 5 Arguably, there has been a recent proliferation of face a range of social challenges, chiefly titles, which has resulted in the diminution of virtually unknown and not dealt with by respect for chiefs and contestations over power and authority. In 2006, the National Council of Chiefs Act "In the islands, if kastom before, to which chiefs have little provided for an administrative structure of the capacity to respond. This creates a National Council of Chiefs and for its role in someone steals from vacuum between the state and the registering island and urban councils of chiefs, but its attempt in identifying rightful chiefs appears to have your garden, or kastom; if mechanisms for dealing with the resolution of new (modern) disputes exacerbated the problem. someone beats up his wife, you go to The Way Forward your chief. If they The upsurge in land alienation triggered The Summit has provided a political can't sort it out we the convening of the 2006 Land Summit opening for new thinking on land reform on the initiative of the National Council of issues. The resolutions represent an go to the Nakimal Chiefs. The Summit, held under the attempt to return control over land to (meeting house) and theme Sustainable Land Management custom landholders and create spaces for and Fair Dealings to Ensure Progress more equitable negotiation between talk about the with Equity and Stability, provided an communities and foreign investors. The problem and find opportunity for a range of stakeholders challenge in the coming years is to to discuss the most pressing land issues translate these resolutions into effective some solution. That and solicit a broad-based agreement on practical solutions that reflect the culture, is an ongoing part of a set of recommendations that would values and preferences of ni-Vanuatu, feed into the development of a National while providing security for investment the community life, Land Policy and land administration opportunities. and very important system. Among its resolutions are: strengthening group customary The World Bank's Justice for the Poor or society would ownership and participation of all program and AusAID are currently exploring ways of supporting ongoing break down."*** members of the group in the decision- making process about their land; policy reform at the national level with a removing Minister's authority to approve view to informing the promotion of more leases over disputed land and imposing effective and equitable dispute resolution Further Information temporary moratorium over lease processes in Vanuatu. granting; ensuring public access to the *** Visit our website: Kim Thomas. "Vanuatu: Islands of Sunshine and sea; ensuring government's unbiased www.worldbank.org/justiceforthepoor Shadows". The Press, Saturday, 6 October 2007. role as intermediary in negotiations 1 Lunnay, Fingleton, Mangawai, Nalyal and Simo. between the parties; and increasing 2007. "Review of National Land Legislation, Policy Questions? public awareness of land rights and and Land Administration", Attachment 1. Interim laws.1 Transitional Strategy and Future Plans to Implement the Resolution of the National Land Summit 2006. E-mail: j4p@worldbank.org 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.