(Above image: Queens Road at Nadi Airport)
This posting is a rebuttal to the skewed facts published in Fiji Sun's Political Editorial, regarding Fiji's land issue.
Time to face land issue
By MAIKA BOLATIKI
Fiji Sun Political Editor
Very little has been heard from the Interim Government on the renewal of expiring leases. We should applaud the determination of past governments in trying to resolve this issue. However, it is unfortunate that it has become heavily politicised and a sensible and pragmatic solution cannot be guaranteed.
This opening paragraph leads people to think that, expiring leases was heavily affected by the interim Government. It is correct to point out that, the land issue has long been heavily politicised prior to the existence of the Interim Government. However, little description was given by the Fiji Sun Political Editor to outline how exactly this had come about.
Well, nothing is impossible on this earth. Ousted Prime Minster Laisenia Qarase, during his term in office, tried his very best to solve this problem, but could not, even though he had the backing of the Great Council of Chiefs (GCC) and the Native Land Trust Board. (NLTB).
Although, Laisenia Qarase had attempted to solve the land problem, the fact of the matter is that during his 6 years in office, little to nothing had changed. The very fact that GCC and NLTB were given carte blanche to decide the future of native lands that they did not own; may have contributed to the failed attempts by Laisenia Qarase to phase out ALTA. Apparently, the numerous media reports of dissatisfied landowners were conveniently glossed over.
Access to land is a major prerequisite for any development. We all know the current system of land tenure in Fiji has been seen to be very rigid The Agricultural Landlord and Tenant Act 1966 (ALTA) governs the negotiation and grant of agricultural leases on native land. About 50 per cent of all leases are ALTA leases. Since the leases began expiring in 1997, it has been increasingly difficult to renew them under the ALTA framework.
Neither the landlords nor the tenants are happy with the terms and conditions imposed under ALTA. The landlords are unhappy about the low rental levels, which do not appear to reflect the value of the land, and the tenants want stronger provisions providing compensation for improvements in the event that the lease is not renewed.
Does Maika Bolatiki's attach empirical evidence corroborating his claim that, landowners and tenants were unhappy with ALTA legislation? Clearly in the absence of such evidence, the Fiji Sun Political Editor made an unqualified view and through his misrepresentation of facts, aided and abetted the politicising of the land issue, which Bolatiki initially bemoans.
I must admit that the major factor affecting talks on the renewal of ALTA leases is that the ALTA legislation is constitutionally entrenched and can only be amended if a two-thirds majority concurs.
Before the military removed the elected Laisenia Qarase-led Government, hopes were high that the land lease problems would be solved because there was a multi-party Cabinet. Soon after the swearing in of the multi-party Cabinet, Prime Minister Qarase said he would make a proposal to his Cabinet that they should urgently find a solution to the land problem.
Should have, Would Have, Could Have are perhaps a summation of the biggest regrets for Laisenia Qarase's Government. It shouldn't require a Fiji Sun Political editorial to ascertain how things would be different; such hindsight only confirms Bolatiki's apologist role as well as being a history revisionist for the deposed SDL Government and their controversial policies.
“I will be proposing to my Cabinet colleagues that we should urgently make a new start on discussion and consultation,’’ [Qarase] announced. `` When we addressed this problem in the last parliament, we narrowed down the differences to the point where an answer was within sight. But this did not happen.’’.
[Qarase] said there had been suggestions that they should delay finding a solution to the land issue, on the grounds that they first needed to ensure that the multi-party Cabinet was functioning properly. “With the greatest of respect to those who hold that view, I do not think the Government or the country can afford to further postpone consideration of this vitally important question. “We cannot ignore the social difficulties and human suffering caused by expiring leases. There are people and families involved here and we have a clear duty to them.”
Those social difficulties exist due to the unequal wealth distribution formula, which gives NLTB a percentage of lease rentals. Social difficulties exist because landowner are prevented from negotiating with developers on their own terms and conditions; enslaving them into a mere observer status and stonewalling their avenues of social mobility.
We all know that the Soqosoqo Duavata ni Lewenivanua Government had tabled a Bill to amend the ALTA, but it was defeated because it did not have the two-thirds support of the Lower House.
Another fact which Bolatiki glosses over is that, several SDL Ministers did not vote on that crucial Parliamentarian debate on ALTA. It appears that the were some differences within that party and apparently Laisenia Qarase's intentions to convert ALTA legislation failed primarily in attracting support from the landowners and tenants, as well alienating SDL in securing a bi-partisan solution.
Now that we have an Interim Government, we are glad that a media statement from Interim Prime Minister Commodore Voreqe Bainimarama stated, “We will resolve the land lease problem.” The statement ends there. What we want to know is - how is the Interim Government going to solve this longstanding issue?
The clean up campaign orchestrated by the interim Government is directing a series of reforms into Native Lands Trust Board (NLTB). Sadly, the decay within that landmark institution had escaped the attention of the SDL Government and Maika Bolatiki.
Also escaping attention is the long disdained formula for land rentals, the disconnect between the NLTB and the landowners, the abuse of Native legislation in Fiji to line the pockets of an elite few, the misdirection in NLTB's strategic plans that actually over reaches from its legislated function; failing in its fiduciary duty to represent the landowner's interests and allowing land leases without landowner's succinct consent. Notwithstanding the scandal in paying $11 million for a IT software or NLTB's plan to create a cellular phone network with the vendor for the IT software.
In some media reported complaints made by the landowners, was that their signatures were forged by NLTB officials, to facilitate a million dollar development project on their ancestral land. Another media reported complaint was that, a negotiator and NLTB board member violated conflict of interest ethical guidelines, by representing both the Hotel developer and the landowner in drawing up initial terms of agreement; which the landowner themselves were not privy to.
The ousted Government had proposed the Native Land Trust Act (NLTA) as the solution and that is for all ALTA leases to be under NLTA. The proposed NLTA leases give much greater flexibility in lease conditions, which would allow landlords and tenants to reach agreement within the legal framework. Considerably long security of land use is available and potentially higher rentals must be seen in the context of the illegal upfront payments for goodwill, which must now be paid for the lower rental levels prescribed under ALTA.
NLTA is supported by the GCC and NLTB. For this solution to materialize, it must have the support of two-thirds of the members of parliament. The NLTA proposal is strongly rejected by the Fiji Labour Party. The FLP wants ALTA retained and amendments must be made within the ambit of ALTA. Because of the rigidity of ALTA, it has resulted in the development of an illegal “black market” in which landlords and tenants reach agreement outside the law.
This black market is evident in the growing incidence of vakavanua arrangements. These are informal agreements - with nothing in writing - between mataqali and families or individuals who wish to occupy and use some land. They can run for many years, sometimes decades. The main problem with vakavanua agreements is that they leave the tenant outside the formal property rights system and thus unable to take advantage of the benefits of a legal leasehold title.
While castigating these informal arrangements of native land, Maika Bolatiki ignores the practice of it by past Fiji Governments; which continues to rear its ugly head in the Courts. NLTB had even attempted to lobby for legislation, preventing indigenous landowning units from taking legal action. Those efforts by NLTB were soon abandoned because it violated the 1997constitution. However, a similar clause [Section 5(1)]had appeared in the 2006 proposed Qoliqoli legislation; giving NLTB the role of resource managers to native fishing grounds, as opposed to empowering landowner themselves to undertake the duties.
The Government of the day must solve the land lease issue. It must establish a legal framework that allows the landlords and tenants to agree on a sound, secure, legal basis rather than through an ALTA-based black market. The Interim Government made some bold changes when it came into power. Can it solve the land lease problem? Surely it can, but it must be mindful of the wishes of the landowners. With Mahendra Chaudhry playing a major role in Government, he can surely come up with a solution. In fact he already has one. The GCC and the NLTB should be consulted.
Once again the consent of GCC and NLTB have taken poll position in Bolatiki's perspective. It is safe to assume that the very landowning units are located way down the Totem pole and that they have been rendered insignificant. This widely held view was echoed by a remark televised by Fiji TV, made by the deposed NLTB, Kalivati Bakani. According to Bakani, landowners are not educated enough to manage their own land resources.
The indigenous Fijians have land ownership rights and these cannot be forcefully taken a way from them. Even the barrel of the gun cannot remove this right.
This attempt to equate the recent clean up campaign with native land ownership, reminds us of the fear propagated by NLTB in late 1999, to create resistance to Mahendra Chaudary's Government and their initiative to create a Land-Use Commission. It is now widely believed that, this induced climate of distrust paved the way for the 2000 coup.
In fact, these issues of native land ownership is currently featured in a Suva High Court lawsuit; where a Suvavou landowning unit have claimed monetary compensation for the loss of their land and ancestral fishing grounds. Ironically the land in contention is now a City making up Fiji's capital and the central business district.
One wonders with incredulity on the fact that, NLTB the supposed guardian of native lands failed embarrassingly to pursue these issues. GCC , the Great Council of Chiefs are equally guilty, of failing to address the concerns of Suva natives. After all, isn't the GCC is a forum where all matters pertaining to indigenous Fijians should be raised.
It is brow raising to see how the pertinent issue of native land on Fiji, could be overlooked by the GCC. In fact, the inability of these native institutions to raise grassroots issues, call into question the justifications for having such institutions. Another case that represents the in-built dichotomy within native affairs, was the Monasavu landowner and their lawsuit for having their ancestral land taken by the State without compensation, for the construction of Fiji's only Hydro dam and power station infrastructure in 1979.(Above image: Fiji lawyer, Isireli Fa and his clients)
The Monasavu landowner's settled their lawsuit with the High Court issuing an unprecedented award of $52 million, inextricably paving the way for other claims. Inexcusably, the NLTB and GCC did not address those matters; prompting landowners to pursue legal avenues. Other embarrassing dimensions featured in the Monasavu case, was that NLTB had attempted to insert themselves as the sole distributor of the court award, but failed; prompting the Court to create a landowner trust fund as a financial vehicle to distribute the compensation.
The people who are affected cannot wait until 2010 for the elected Government to take the matter up to parliament. This is a very sensitive issue and a solution must be reached through negotiation with all of the parties concerned. Under the constitution, the Interim Government cannot touch the ALTA issue.
Bolatiki's opinion then scatters from the issue of native land to the issue of the road map to 2010 elections and back again, without pointing out the significance. Bolatiki further highlights the ALTA issue and warns the Interim Government against touching the ALTA legislation; while earlier in the article Bolatiki had advocated SDL Government's position of reforming ALTA.
Any amendments to the ALTA must be tabled in parliament and passed with the support of two-thirds of the members of parliament. There is no other legal way out of this. It is very important the Interim Government prioritizes the lease problem as it can build confidence for the investors who want to invest in the country at this trying time.
It is apparent that Fiji Sun Political Editor is using sleight of hand to confuse issues. ALTA legislation is a convenient Red Herring, while Bolatiki chronically ignores the inherent flaws within Fiji's native institutions; that have saturated these institutions with a culture of corruption.
The repeated and unfettered abuse in GCC, NLTB, have raised concerns on the absence of any mechanisms of checks and balances over these powerful entities.
Another way out of this is to bring forward the general election and let the elected government deal with the matter. This again will not be accepted by the Government of the day. Surely the Interim Minister for Fijian Affairs is now working on a solution.
Clearly the solution pursued by the interim Minister of Fijian Affairs, is a systemic overhaul and re-evaluation of the branches of native governance. Undoubtedly, the stagnation and corruption of these native institutions did not appear on the radar screens of the SDL Government, Maika Bolatiki, NLTB and GCC collectively; simply because they were part and parcel of the tentacles of misrepresentation.
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