Common Ground

[Originally published in the Vanuatu Daily Post’s Weekender Edition.]

Even in the decades before Jimmy Steven’s Nagriamel movement, land has been at the core of ni-Vanuatu politics and society. Many battles have been fought – and far too many lost – over land rights.

Justin Haccius, a legal researcher for the World Bank’s Jastis Blong Evriwan project, has been looking at this issue for some time now. The conflict between kastom and law, he says, is one of the central issues affecting Vanuatu society today. The problem, as he sees it, is simple: “The system of the majority is not the system of the State.”

In a briefing note titled “Coercion to Conversion: Push and Pull Pressures on Custom Land in Vanuatu” Haccius highlights some of the pressures brought to bear on kastom land owners in their efforts to derive value from their land without becoming completely disenfranchised in the process.

Kastom varies widely from island to island, which makes it difficult to codify it in legal language. Nonetheless, certain commonly held principles are ignored by colonial legal tradition. At the core of the problem is the conflict between rigorous legal strictures and the fluid relationship in kastom between ownership and land use rights.

Haccius writes, “Land is generally owned by a family group, with allocations for use made by a patriarch….” This fluidity allows for compromise and accommodation, but that fluidity disappears when land is leased. The legal framework surrounding leasehold title requires a single, identifiable owner, and generally confers exclusive land use and access rights to the lessee.

The process of identifying an owner is often messy, to say the least. It compounds existing tensions at the village level as individuals and families position themselves to profit from land sales. The exclusive nature of land leases often leads to a winner-take-all scenario in which the person identified as the land owner reaps all the benefits, leaving others at a loss.

Shortly after Independence, the Minister of Lands was given the right to deal in disputed lands. While the purpose at the outset was to avoid upsetting agricultural production on plantations, the practice has since become commonplace. “Absent effective checks and balances this wide ranging power is open to abuse,” states the report.

The report notes that a 2008 Private Member’s Bill to remove this power was defeated in Parliament “on the grounds that disputes could not be allowed to hinder development.” But what is the point of development if it disenfranchises those who deserve most to benefit?

Haccius sees two forces at work here: ‘Push’ pressures pit family members against one another as they vie amongst themselves to parcel and sell their land. Economic necessity exerts a ‘pull’ pressure on land owners as well. Lands sales are often the only way kastom land owners can gain access to the cash economy. As families are drawn inexorably deeper into the cash economy, the pressure to give up access to their land increases.

This dynamic creates a system in which kastom owners operate at a perpetual disadvantage. “Custom-owners need a quick sale. Seeking better offers, marketing land or prolonging negotiations is as likely to produce contesting claimant owners attracted by a cash sale.” Negative outcomes from such a scenario include lengthy court cases, disenchanted buyers and possible intervention by the Minister of Lands.

This gives the advantage to land speculators willing to overlook their own scruples in pursuit of a quick property flip. They swoop in, sweet talk one or two individuals, and before long a few pigs are dead and one villager has a new Hilux and some walking around money. His extended family and their children, meanwhile, have lost their birthright.

Jastis Blong Evriwan is a World Bank-funded project designed to create a better understanding of the issues of social justice at the grassroots level. The goal of the project, says Haccius, “is to train local researchers so that the skills stay in the country. We recognise that the knowledge is there, but the skills” don’t always exist. Too often, he says, when foreign consultants come, they take away the knowledge and skills with them.

By partnering with the Ministries of Justice and Lands as well as with grassroots organisations, Jastis Blong Evriwan aims to join extensive local knowledge with professional legal research and advocacy training in order to create more enlightened and effective policy-making on the national stage. “The research is not to introduce new ways of doing thing, it’s to inform – and reform – existing efforts.”
The formal legal system currently holds a monopoly on development. That shouldn’t be the case.

Haccius believes that kastom shouldn’t be seen as a problem but a resource.

By working closely with local organisations and providing expert training to 3 or 4 local individuals, Jastis Blong Evriwan hopes to build what Haccius calls “bridges of dialogue” between grassroots and the state.

These efforts are timely, even overdue. With a little luck and a lot of learning on both sides, efforts like this might be enough to start the transition for ni-Vanuatu from spectators in Vanuatu’s development to full partners in the wealth and growth of the nation.