Author: Siobhan McDonnell, ANU
‘Land is life’ is a common catchphrase throughout the Pacific. Given the vital importance of land to the subsistence livelihoods of Pacific populations, undertaking land reform requires a long, consultative process, careful piloting programs and thoughtful evaluation. Recent land reforms in Vanuatu may provide key lessons for other countries in the region.
In February 2015, the Department of Lands and Customary Land Management Office staff erected a large billboard in Emau village on Efate Island to mark the beginning of a nakamal process to identify the ‘custom owners’ of land for a quarry. Nakamals are local chief-based customary governance structures that exist across the archipelago. The use of the first nakamal process to identify customary land ownership marks a milestone in the roll out of historic land reforms, a process that began almost 10 years ago.
Momentum for land reform in Vanuatu began in 2005 — the ‘Year of the Customary Economy’. In 2006, the National Land Summit (funded by AusAid) passed 20 resolutions around the changes needed to land laws and administration in Vanuatu.
The movement for land reform mobilised as a response to rapacious land leasing in Vanuatu. Since 2000, there has been a marked increase in speculative land dealings. In these deals large parcels of customary land were purchased cheaply by investors, and then subdivided and resold for significant profits. In 2010, almost 10 per cent of all land in Vanuatu was under lease.
Leasing of coastal areas of Efate Island has led to land shortages and negatively impacted local indigenous people’s access to coastal estates and gardening land. Patterns of leasing suggest successive ministers of lands have been involved in a series of customary land grabs.
Ministers of lands have also been involved in the leasing of state land, with the worst offender being the former minister of land Steven Kalsakau. In 2011, Kalsakau leased heavily discounted urban state land to staff located within the Department of Lands, family, friends, and business and political associates. Kalsakau’s largess extended to leases of state land to cleaners within the Department of Lands and to his driver. In some instances nothing was paid for these ‘leases’. Together Kalsakau’s leases of state land represent a loss of around US$7.8 million in revenue to the Vanuatu government.
In 2012, Ralph Regenvanu, the leader of the Land and Justice Party, became the Minister for Lands. He was elected on a commitment to reforming land law in line with the resolutions of the National Land Summit. His team immediately began work on a new set of amendments to the Constitution and land laws in Vanuatu.
The land reforms were drafted through a process of national consultations across all provinces, which culminated in the National Land Law Summit in 2012.
The new laws, formally promulgated in February 2014, consist of constitutional amendments, amendments to the Land Reform Act and Land Leases Act, and a new Customary Land Management Act.
The new laws remove the power of the Minister of Lands to deal in customary and state land. This will have significant implications for the political economy of land dealings in Vanuatu, which operates as a web of relationships between key politicians and mainly foreign-born investors with links to Vanuatu’s offshore financial sector.
Leases for development on customary land will now need free, prior, informed consent of the ‘custom owner’ group. The laws have also halted land grabs of customary and state land by successive ministers.
The laws also represent a significant commitment to legal pluralism. Constitutional amendments change the jurisdiction for identifying custom owner groups away from the formal state courts and into nakamals.
The laws further provide a new model for the recognition of women’s rights to be heard in nakamals. The laws also established an appeal mechanism in case this doesn’t occur, allowing nakamal decisions to be reviewed by the newly created position of Land Ombudsman.
The new land laws are fully operational with respect to existing customary land leases and for all dealings in state land. The new identification and consultation processes are now being carefully piloted for new customary land leases. The meeting of the Emau nakamal to determine custom ownership over the quarry area marks the first of these pilots.
The Vanuatu experience suggests that substantive, innovative land reform needs long-term public consultation, careful policy piloting and evaluation. It also needs the ongoing support of donors interested in innovative approaches to land reform. Donors must keep in mind that in the Pacific appropriate processes for decision-making over land are often the precursor to sustainable development, addressing climate change and effective disaster management.
Siobhan McDonnell is the Legal Advisor to the Minister of Lands, Ralph Regenvanu, and was the principal drafter of the land reform package described in this article. She is currently completing a PhD at the Australian National University.