Showing posts with label native rights. Show all posts
Showing posts with label native rights. Show all posts
Tuesday, July 27, 2021
ATTORNEY-GENERAL Aiyaz Sayed-Khaiyum has issued a very long, 30-paragraph defence of the iTaukei Land Trust (Amendment) Bill.
But I am not sure he has really got to the point.
The aim of the law change, he says, is to speed up the backlog of mortgage consent applications at the iTaukei Land Trust Board. Once this is done (he seems to suggest) investment will flow, and the value of iTaukei land leases will increase; and this will be great for landowners.
This is fantasy. Whoever has drafted the amendment Bill does not seem ever to have worked in the real world of dealing with iTaukei leases. For the past 25 years, I have worked for commercial tenants of iTaukei land. So let me try to enlighten him.
To cover every argument would take a lot more words. But let’s try to hit the key points. I am not talking here about the need to consult. Should the Government consult landowners? Of course it should. It is very important. That is just obvious.
What is the problem? The Government thinks this is a commercial problem. So let’s talk about commercial and tourism leases from TLTB.
TLTB usually approves mortgage consents in less than a week. No commercial lawyer I have talked to says differently.
If a request is more urgent, in my experience, TLTB will try to help.
TLTB’s fees for commercial lease consents are expensive – up to $1,000 plus VAT. So we should expect good service.
Most applications run smoothly. Occasionally they do not.
If TLTB thinks there is a problem with the mortgage or the lease, there may be delays. But that is normal, as in any process.
So — that’s TLTB leases. Now, what about leasing from the Government — State leases? State leases are a problem. To get a mortgage consent for a State lease can take weeks, or even months. The Government also wants a legal fix for the State Lands Act and Government leases. That is in Bill No 16.
One of the Government’s mistakes is to treat these two different types of land with exactly the same fix. The laws are One of the Government’s mistakes is to treat these two different types of land with exactly the same fix.
The laws are different. different.
“Cut, paste, vote”
In one sense each of the State Lands Act and the TLTB Act are the same.
They each say “you must not deal with my leased land without my consent”.
But they each say it in a different way.
The TLTB Act says a lessee can’t “alienate or deal with” a TLTB lease without consent. It also says that it is “in the absolute discretion” of TLTB whether it consents or not. That is all the TLTB Act says about it.
Is a mortgage a “dealing”? We all accept that it is – so end of story. We ask for consent. The State Lands Act says it differently. A lessee must get permission before it “alienates or deals with” State land (same as TLTB Act).
But a State land lessee must also get permission before it “mortgages, charges or pledges” the lease, or goes to court about the lease. And anyone who wants to lodge a caveat against a State lease must also get Government permission.
The TLTB Act does not have these additional restrictions. The law is different.
Has the Attorney-General’s Office realised this? Because it has simply put the same words into both of the Bills.
A good law firm frowns on “cut, paste print” lawyering. These Bills seem to be “cut, paste, vote” legislating. That is not a good way to change the law. If Bill No 17 had been circulated for consultation, we could point out these things.
So both laws are to be changed saying that consent is not needed for mortgages, charges, pledges, caveats and so on – but in a very long-winded way.
But there’s more If that was the only issue, we might just say “more badly-written laws, – Richard Naidu – what’s new?”
But that’s not all there is. In both Bills – 16 and 17 – there is another new subclause.
More cutting and pasting. And this is the change that bothers me, and which nobody seems to be focused on.
Each Act will also be changed to say this: “For the purposes of this section, any such consent shall only be refused where there is a breach of any lease condition or where such application to deal with the land is not in accordance with any law”.
What does this mean? For TLTB, it changes the rules. It means any lessee of TLTB land can sublease to anyone else — or sell a TLTB lease to anyone else — and TLTB must agree.
There are only two exceptions to this new rule; • if the lessee has breached the lease (for example, the lessee has not paid its rent); or • if the sale or sub-lease would breach a law (for example, a foreign investor is not allowed to do business on the land).
The explanatory notes to the Bill do not talk about this change. Nor do they say why this change is needed.
The TLTB Act says TLTB is supposed to have “absolute discretion” on any “alienation or dealing” with a TLTB lease. So why is this discretion being altered? Imagine you own a house and you rent it to someone. Your tenant says to you: “By the way, as long as I pay my rent, I can put another tenant in the house. Or maybe I will let someone else stay there and charge them a higher rent. And you can’t stop me. Would you agree to that? If you would not, why should TLTB be made to do that? Why is the government doing this? Most people know I am not a big fan of our current government. Do I think they are trying to take away landowners’ control of their land? No. I don’t think they mean to. But they don’t seem to know what they’re doing. And they never ask anyone for advice first. So they don’t seem to understand “the reality of the matter”.
These law changes do things that maybe they haven’t thought about. They need to be properly discussed. This Government is constantly rushing into Parliament to change any law it wants to, any time it wants to, without thinking clearly about it.
Many of our laws — including the TLTB Act — are decades old. They were well-designed, by expert legal drafters.
These people consulted properly and put thought and care into their words.
Now I see a lot of bad legal drafting being just “glued on” to good laws to satisfy some poorly thought out political whim.
It’s a bit like putting a Kia bumper onto the front of a Rolls-Royce.
If you have a problem in Government, look for the right ways to fix it. If there are delays at the Department of Lands, find out why and fix them. Don’t just reach for your pen to change the law.
Laws should be treated with more respect than that.
More value? And finally — what will be the effect of this law on iTaukei land? Will it make it more marketable? Will it make it more valuable? It will not change its value one bit. In 25 years of practice, I have never heard a developer, a banker, a lessee — or even a landowner say “gosh, if only there was no mortgage consent — iTaukei land would be so much more valuable”.
Political sloganeering is very different from the serious business of law. The two should not be mixed up. It’s great to say in the Budget speech “we will fix all the problems”. But there has to be a real problem first. This is just “a solution looking for a problem”. In the process it is creating a much bigger one.
• RICHARD NAIDU is a Suva-based lawyer. The views expressed in this article are not necessarily the views of The Fiji Times
But I am not sure he has really got to the point.
The aim of the law change, he says, is to speed up the backlog of mortgage consent applications at the iTaukei Land Trust Board. Once this is done (he seems to suggest) investment will flow, and the value of iTaukei land leases will increase; and this will be great for landowners.
This is fantasy. Whoever has drafted the amendment Bill does not seem ever to have worked in the real world of dealing with iTaukei leases. For the past 25 years, I have worked for commercial tenants of iTaukei land. So let me try to enlighten him.
To cover every argument would take a lot more words. But let’s try to hit the key points. I am not talking here about the need to consult. Should the Government consult landowners? Of course it should. It is very important. That is just obvious.
What is the problem? The Government thinks this is a commercial problem. So let’s talk about commercial and tourism leases from TLTB.
TLTB usually approves mortgage consents in less than a week. No commercial lawyer I have talked to says differently.
If a request is more urgent, in my experience, TLTB will try to help.
TLTB’s fees for commercial lease consents are expensive – up to $1,000 plus VAT. So we should expect good service.
Most applications run smoothly. Occasionally they do not.
If TLTB thinks there is a problem with the mortgage or the lease, there may be delays. But that is normal, as in any process.
So — that’s TLTB leases. Now, what about leasing from the Government — State leases? State leases are a problem. To get a mortgage consent for a State lease can take weeks, or even months. The Government also wants a legal fix for the State Lands Act and Government leases. That is in Bill No 16.
One of the Government’s mistakes is to treat these two different types of land with exactly the same fix. The laws are One of the Government’s mistakes is to treat these two different types of land with exactly the same fix.
The laws are different. different.
“Cut, paste, vote”
In one sense each of the State Lands Act and the TLTB Act are the same.
They each say “you must not deal with my leased land without my consent”.
But they each say it in a different way.
The TLTB Act says a lessee can’t “alienate or deal with” a TLTB lease without consent. It also says that it is “in the absolute discretion” of TLTB whether it consents or not. That is all the TLTB Act says about it.
Is a mortgage a “dealing”? We all accept that it is – so end of story. We ask for consent. The State Lands Act says it differently. A lessee must get permission before it “alienates or deals with” State land (same as TLTB Act).
But a State land lessee must also get permission before it “mortgages, charges or pledges” the lease, or goes to court about the lease. And anyone who wants to lodge a caveat against a State lease must also get Government permission.
The TLTB Act does not have these additional restrictions. The law is different.
Has the Attorney-General’s Office realised this? Because it has simply put the same words into both of the Bills.
A good law firm frowns on “cut, paste print” lawyering. These Bills seem to be “cut, paste, vote” legislating. That is not a good way to change the law. If Bill No 17 had been circulated for consultation, we could point out these things.
So both laws are to be changed saying that consent is not needed for mortgages, charges, pledges, caveats and so on – but in a very long-winded way.
But there’s more If that was the only issue, we might just say “more badly-written laws, – Richard Naidu – what’s new?”
But that’s not all there is. In both Bills – 16 and 17 – there is another new subclause.
More cutting and pasting. And this is the change that bothers me, and which nobody seems to be focused on.
Each Act will also be changed to say this: “For the purposes of this section, any such consent shall only be refused where there is a breach of any lease condition or where such application to deal with the land is not in accordance with any law”.
What does this mean? For TLTB, it changes the rules. It means any lessee of TLTB land can sublease to anyone else — or sell a TLTB lease to anyone else — and TLTB must agree.
There are only two exceptions to this new rule; • if the lessee has breached the lease (for example, the lessee has not paid its rent); or • if the sale or sub-lease would breach a law (for example, a foreign investor is not allowed to do business on the land).
The explanatory notes to the Bill do not talk about this change. Nor do they say why this change is needed.
The TLTB Act says TLTB is supposed to have “absolute discretion” on any “alienation or dealing” with a TLTB lease. So why is this discretion being altered? Imagine you own a house and you rent it to someone. Your tenant says to you: “By the way, as long as I pay my rent, I can put another tenant in the house. Or maybe I will let someone else stay there and charge them a higher rent. And you can’t stop me. Would you agree to that? If you would not, why should TLTB be made to do that? Why is the government doing this? Most people know I am not a big fan of our current government. Do I think they are trying to take away landowners’ control of their land? No. I don’t think they mean to. But they don’t seem to know what they’re doing. And they never ask anyone for advice first. So they don’t seem to understand “the reality of the matter”.
These law changes do things that maybe they haven’t thought about. They need to be properly discussed. This Government is constantly rushing into Parliament to change any law it wants to, any time it wants to, without thinking clearly about it.
Many of our laws — including the TLTB Act — are decades old. They were well-designed, by expert legal drafters.
These people consulted properly and put thought and care into their words.
Now I see a lot of bad legal drafting being just “glued on” to good laws to satisfy some poorly thought out political whim.
It’s a bit like putting a Kia bumper onto the front of a Rolls-Royce.
If you have a problem in Government, look for the right ways to fix it. If there are delays at the Department of Lands, find out why and fix them. Don’t just reach for your pen to change the law.
Laws should be treated with more respect than that.
More value? And finally — what will be the effect of this law on iTaukei land? Will it make it more marketable? Will it make it more valuable? It will not change its value one bit. In 25 years of practice, I have never heard a developer, a banker, a lessee — or even a landowner say “gosh, if only there was no mortgage consent — iTaukei land would be so much more valuable”.
Political sloganeering is very different from the serious business of law. The two should not be mixed up. It’s great to say in the Budget speech “we will fix all the problems”. But there has to be a real problem first. This is just “a solution looking for a problem”. In the process it is creating a much bigger one.
• RICHARD NAIDU is a Suva-based lawyer. The views expressed in this article are not necessarily the views of The Fiji Times
Tuesday, October 23, 2007
The Trouble With Native Land Administrators.
Fiji Sun article by the their Political Editor poses interesting but academically flawed questions about the issue of native land in Fiji. The following is an excerpt:
The newly appointed General Manager of NLTB, Semi Tabakanalagi has also some skeletons in his closet, with respect to access, accountability and transparency to landowners as an earlier S.i.F.M post outlines in regards to the negotiations for Natadola Project. Fiji Times website "Have Your Say" column has many posters questioning Tabakanalagi's character and ask why Semi Tabakanalagi wasn't removed along with the old NLTB General Manager, Kalivati Bakani.
The following comments are an excerpt from "Have Your Say".
One thing is certain that, Tabakanalagi has managed to sweet-talk himself out of scrutiny. What is a concern to many native landowners is, the perceived "Quid Pro Quo" made by Semi Tabakanalagi to the Interim Minister of Fijian Affairs, Epeli Ganilau; in exchange for his new post as General Manager for NLTB, which may include immunity from prosecution for prior abuses as a NLTB official.
Semi Tabakanalagi appears to have to have seat on the board of Yaqara Group, along with the former NLTB Board Member and APRIL Executive, Keni Dakuidreketi as the Yaqara Group website explains. This is the excerpt of Tabakanalagi's CV as posted on the website:
The question of ownership of Yaqara land was raised by former Fiji Senator, Dr. Atu Emberson-Bain during a heated debate in the 2004 session in Fiji Parliament. Hansard available here.
The following is an excerpt:
That particular debate on the question of ownership of Yaqara raises more questions than answers. On 14th February 2005, the company was issued a 99 year Crown lease No 15734 by the Department of Lands and Survey of the Government of Fiji, for Crown Land totaling 1091.2668 hectares and effective from 1st January 2003. The specific purpose of the use of the land is described as for the “Development of the Studio City”.
Why is NLTB representative sitting on the Yaqara Board of Directors, when the Department of Lands issued the 99 year lease?
How will NLTB General Manager, Semi Tabakanalagi demarcate his interests of being a icon of Native Lands Trust Board but at the same time, representing the interest of the land developer called Yaqara Group?
It appears that something drastically amiss in this clean up of NLTB, because the abolishment of NLTB"s commericial arm company "Vanua Development Corporation(VDC) was one of the main demands made to deposed Fiji Prime Minister, Laisenia Qarase by Army Commander, Frank Bainimarama prior to the 2006 coup.
The List of Demands:
An excerpt from a Fiji Government website article describes the lack of credibility with Tabakanalagi:
However, several legal precedents made by several notable cases in Fiji have thrown the spanner in the works with regards to the Fijian understanding of land ownership and squaring that particular claim with past legal cases. One particular paper, addresses the Fijian Understanding of the Deed of Cession.
Several of these legal case has been addressed by a working paper authored by Sunil Sharma LLB. The following excerpt is the conclusion of the paper:
Another view of the legal precedence in Fiji case, demonstrates that despite the understanding of most landowners, mostly reinforced by misconstrued information delivered unapologeticaly by some ill-informed writers like Bolatiki.
The following excerpt is from the ruling form a Supreme Court case: Kaliavu v Native Land Trust Board [1956] FJSC 1; [1955-57] 5 FLR 17 (27 August 1956)
In another Supreme Court decision in the case of Dikau v Native Land Trust Board [1986] FJSC 7; [1986] 32 FLR 179 (9 May 1986) which Justice Rooney concluded that:
In the case of Native Land Trust Board v Narawa [2004] FJSC 7; CBV0007.2002S (21 May 2004) may have also placed the issue of mataqali rights under a new light by overturning the ruling by Justice Rooney in the case of Dikau VS NLTB (1986).
The excerpt of the Appeal Courts Judgement is as follows:
Seed Newsvine
Club Em Designs
Landownership is ‘intact'
Maika Bolatiki
Political Editor
maikab@sun.com.fj
Last updated 10/24/2007 9:46:52 AM
A lot has been said about the People's Charter and one of the major concerns is the promotion of equal rights. The indigenous people are worried about this, especially when they have their own rights. Some interpret these equal rights to be transferred to land ownership.
It is a fact that this must be addressed. Can the indigenous Fijians lose their land ownership right? Some are trying to look at legal means of trying to have land ownership rights. Is the landownership of the indigenous Fijians safely protected under the Deed of Cession? Can this ownership right be challenged in court?
With the charter paving the way for a non-racial Fiji will it affect land ownership?
Let us look at the total social set up of the indigenous Fijians. They belong to a clan which is located in a village. Every clan in the village is represented by an elder, known as a mataqali. Then they have the village chief who has the total respect of all in the village. Fijians believe that there are two types of people, "taukei" - the indigenous people who are of the land, look after the land and own the land, and the "vulagi" who are visitors to Fiji,(including the Indians brought into Fiji in the late 1800s to harvest Fiji's major cash crop, sugar cane).
A politician said in his research: "The vulagi are not seen as belonging and therefore not obliged to care for the land. The Fijian categorises everybody into these two boxes - while we might be a "taukei" in our homeland we are a "vulagi" in theirs and vice-versa."
Former president of the Methodist Church of Fiji now a resident of New Zealand Dr Iliatia Tuwere summed this philosophy up to Fijians living in New Zealand in 2004, "It is good to always remember that in Aotearoa, we are visitors and will remain so. It does not matter how long we have been here in New Zealand, whether it has been for 40 or more years, we are and will always remain visitors here; we are however taukei of Fiji."
It can be clearly seen that land ownership is a key foundation of Fijian culture and for this region it has been fiercely protected from the first settlement of whites and Indians back in the mid-1800s. Today more than 80 per cent of land in Fiji remains in the hands of the indigenous people - although some of this is leased for up to 99 years through agreement with the village mataqali to hotels and, mainly, Indian farmers growing sugar cane.
It is this issue of land ownership that has been the source of much trouble in Fiji since its independence - including the latest coup in 2000. Just recently a submission was made by Ba lawyer Dr Shamsud Dean Sahu Khan to the Fiji Law Society on "Legal status of different types and/or ownership of lands and status of sea water and reefs in Fiji from the Deed of Cession 1874 - today".
He says it is very important to appreciate that under the Deed of Cession the proprietorship of all lands in Fiji except some lands were transferred and vested in Queen Victoria and her heirs and successors except the lands which had become the property of the Europeans and other foreigners and the lands which were in the actual use or occupation of some chief or tribe or not actually required for the probable (not possible) future support and maintenance of some chief or tribe."
It is a fact that the legality of land ownership is now questioned. Interim Prime Minister Voreqe Bainimarama said there was a misinterpretation of the charter with regard to land ownership. He said land ownership rights would remain with the indigenous Fijians forever.
Land ownership is protected under the 1997 Constitution. The constitution clearly stipulates that any change to the Native Land Act must be passed by three quarters of the members of the Lower Hose and three quarters of the Great Council Chiefs in the Senate. The indigenous people are very suspicious because of the change in the GCC membership and the new move to hold a referendum to amend the constitution.
We applaud the strong stand taken by the Prime Minister. Land at no time should be discussed without the knowledge of the indigenous owners. They know for fact that land was acquired through tribal wars where lives were lost and this happened well before cession. Land acquisition also was through traditional means. Land is a very sensitive matter for the indigenous people. Their land is close their hearts and it is part of them.
How will they feel if their landownership right is taken away from them? The late Ratu Sir Lala Sukuna went around the whole country crossing mountains and rivers to establish landownership. The Native Lands Commission has records of this. It is not the right time and there will be no right time for the land issue to be brought up.
But for the legal birds there will always be a right time.
Land is linked to politics and this must be dealt at that level and at the right forum. I know there have been attempts made to amend the legislation in regard to native land but to no avail. With the new charter as the way forward for a new Fiji, it can only be a reality if the rights of the indigenous are protected.
One of the major sources of conflict in Fiji and the region has been the failure to respect the rights of the indigenous people.
As resource owners they should be fully consulted in development projects such as tourism or extractive industries like mining and logging that would affect their environment and subsistence livelihood. This is just a matter of courtesy and respect which is fundamental to human rights.
Just recently a United Nations Declaration on Indigenous Rights was passed.
The declaration does not take away or diminish the rights of others as guaranteed under the Constitution, so it should not be taken as a threat. Okay, the concern of the indigenous people remains and that is the move to have equal rights.
The new charter should clearly state in what areas the equal rights apply.
With the 1997 Constitution still in place, landownership rights for the indigenous Fijians is intact.
It is also a fact that landownership will remain with the indigenous people and no one can change that even by the power of the gun. Let us all hope the new charter will address the land conflict that usually comes up.
W hile, Bolatiki attempts to persuade native landowners that their ancestral land still remains safeguarded under the existing Native Lands Act. Where the rubber meets the road, grassroots landowners have been routinely abused by the officials from Native Lands Trust Board; who appear to have their own dubious agendas, well divorced from those of the humble landowning unit.
The newly appointed General Manager of NLTB, Semi Tabakanalagi has also some skeletons in his closet, with respect to access, accountability and transparency to landowners as an earlier S.i.F.M post outlines in regards to the negotiations for Natadola Project. Fiji Times website "Have Your Say" column has many posters questioning Tabakanalagi's character and ask why Semi Tabakanalagi wasn't removed along with the old NLTB General Manager, Kalivati Bakani.
The following comments are an excerpt from "Have Your Say".
Katalina Balawanilotu of The Greater Bay Area, CA (5 days and 6 hours ago)
14 million $$ in LEASE AREAS
IS A DISGRACE
When are these tenants going to pay up?
They cannot expect to make profit off the land yet refuse to pay the landowners
NLTB need to just cease completely
LANDOWNERS to have the freedom to sell or lease directly to tenants and get 100% of monies.
NLTB being the middleman is the hindrance for both the tenants, developments and especially the landowners.
KAI VIITI of Australia (5 days and 3 hours ago)
We do not know who we can trust anymore: they said it is a clean-up campaign?
Yet they have replaced Mr Bakani with his offsider: the man himself, Semi Tabakanalagi.
What is this man's reputation?
A major institution like the NLTB, which is the heart and soul of every Kaiviti, for;
1. Should always be transparent.
2. Everyone involved should always be accountable to the people.
Semi Tabanalagi needs to declare any business interests and shareholdings he has.
The Military appeared to cut the head of the NLTB, but elevated Semi who is just as bad as Bakani to control the Fijian Land?
The same group of rascals is still operating, untouchable?
Is this a clean up? What is our future Commander? Did you transfer us form a small fire to an inferno?
Are you selling the Fijians out? Just because of your fear of facing the justice? Are you really scared? Why?
Sikituru Villager of United States (5 days and 2 hours ago)
I don't believe it!
I thought this was a clean-up campaign to clean up NLTB and clean out Semi Tabakanalagi and yet they brought him back. NLTB is such a sensitive issue to us Landowners - why did they bring the culprit back. They should have checked his corrupt practises. I am so disappointed!
Rusanavanua of United States (4 days and 21 hours ago)
I'm not sure if Semi is the right man since he's tarnished with defending the words of Bakani "Fijians are not educated enough to manage their own land!" Semi Tabakanalagi also defended Dakeuidreketi's conflict of interest with being an executive of APRIL as well as being a NLTB Board member. Tabakanalagi word's will be come back to haunt him.
And the news of this Vanua Development Corp Ltd being preserved is also a big mistake. It appears that the FAB Interim Minister is being led down the same garden path. Clearly, the root cause of landowner's poverty is the NLTB(which has used Unimproved Capital Value) formula which is less than the Market Value prices for years.
#
Go NLTB Go of Fiji (5 days and 0 hours ago)
Reading thru the comments it seems a lot do not really know what NLTB is there for its functions/roles. Under their Act they have to administer native land for the benefit of native owners (fijians).
The 2 main bodies propping up the native Fijians are NLTB (land) and FAB (people) and they need to work in tandem to improve the welfare of Fijian in general and for land generating more benefits for them. Just trying to point at NLTB being corrupt, etc, etc is a mere waste of time but one needs to look at it objectively.
Why are the Fijian Landowners so poor, so uneducated and underdeveloped? Is NLTB only to blame or others as well including the individual Fijian themselves? There needs to be a revolutionary change in the Fijian mindset, social structure and customs to embrace the global changes we are facing. Is it the people's charter? The previous govt came up with affirmative policies to bridge the gab but it did not assist as much. More Fijians are becoming poorer, more in prisons, more getting sick (lifestyle disease and aids) is it NLTB's fault, FAB, BLV, Govt.
I suppose we all need to take a break and look again where are we going. The Indians took nearly 100 years to educate their children to where they are today holding to all the advantages in our society. For Fijians and landowners they need to take stock and try and work on strategies moving foward for the better. For the new changes at NLTB, my advice is listen/consult landowners more/better, an effective PR/education for landowners/customers,work towards intiatives that landowners and customers value and can take ownership on. Its a hard ask but its not too late and not impossible. Philp 4:13
One thing is certain that, Tabakanalagi has managed to sweet-talk himself out of scrutiny. What is a concern to many native landowners is, the perceived "Quid Pro Quo" made by Semi Tabakanalagi to the Interim Minister of Fijian Affairs, Epeli Ganilau; in exchange for his new post as General Manager for NLTB, which may include immunity from prosecution for prior abuses as a NLTB official.
Semi Tabakanalagi appears to have to have seat on the board of Yaqara Group, along with the former NLTB Board Member and APRIL Executive, Keni Dakuidreketi as the Yaqara Group website explains. This is the excerpt of Tabakanalagi's CV as posted on the website:
The question of ownership of Yaqara land was raised by former Fiji Senator, Dr. Atu Emberson-Bain during a heated debate in the 2004 session in Fiji Parliament. Hansard available here.
The following is an excerpt:
QUESTIONS AND REPLIES
Traditional Landowners - Yaqara Studio City
(Question No. 9/2004)
HON. SENATOR DR. A. EMBERSON-BAIN asked the Government, upon notice:
In the interests of expediting the studio city development at Yaqara and doing justice to the traditional landowners, could the honourable Minister for Fijian Affairs kindly: -
(a) Confirm that the Native Land Commission has conducted the veitarogivanua and that a ruling on the rightful owners of the Yaqara Studio City land has been made?
(b) Could he explain why there has been such a delay in confirming the ruling in writing with the rightful owners, namely, the descendants of the Bicilevu family, when the ruling was made four months ago?
(c) Can he confirm when the NLTB will submit a formal Memorandum of Agreement to the Bicilevu family for signing so that the studio city development can proceed without further disruption or delay?
(d) Can he explain why another landowning group, which is not the acknowledged owner, was involved in the recent installation of the Telecom disk in Ra, in apparent contradiction of the veitarogivanua ruling?
(e) Why did the NLTB draw up an unlawful Memorandum of Agreement with a landowning group without first establishing the rightful owners of the Yaqara land, and what are the liabilities likely to arise out of this unlawful agreement?
HON. SENATOR Q.B. BALE.- Mr. President, Sir, I rise to respond to the questions raised by the honourable Senator as follows:
(a) There has been no such inquiry conducted, because the Yaqara Studio City land which comprises three parcels of land, namely Nabuta, Qeledradra and Naqara (Part of) were sold as Crown Freehold land well before the Native Lands Commission was established. When the Commission was established, it conducted inquiries throughout Fiji on ownership of native land only. Freehold lands, like Yaqara were never the subject of such inquiries.
Moreover the Native Land Commission has not conducted any inquiry into the rightful holders of the subject or rather the initial native owners of this land and any land like it in Fiji, because it does not have the legal power to do so under its own act that is the Native Lands Act.
(b) Sir, the "ruling made two months ago" by the NLC was not a formal Commission sitting but merely a meeting with the Yavusa Navauvau of Korovou Village in Tavua to ascertain the current land ownership rights of Mataqali Nabulou and who the descendants of Bicilevu are.
On this latter issue, there were two claimants - the head of the Yavusa Navauvau of Korovou Village and Noa Sakava, a member of the Mataqali Nabulou, one of the mataqalis of the Yavusa Navauvau.
The Commission could not confirm that the descendants of Bicilevu at Korovou Village are the rightful landowners of Yaqara Studio City, meaning all those parcels of crown freehold land referred to in the previous answer, because it has no jurisdiction in such matters. However, the Commission advised the Bicilevu family during its meeting at Korovou Village on 11th August this year to take their claim to the proposed Lands Claim Tribunal when it is established (and I think he is referring to the Indigenous Claims Tribunal, which will be tabled in Parliament sometime next year).
(c) The NLTB is not aware of the Bicilevu family connection. It has issued a legal binding contractual lease to the developers of the Studio City, with the consent and blessings of the registered owners of the native land portion of Yaqara and the Yavusa Nadokana of Rabulu Village, Tavua. This is native land, which was formally Schedule A and was allotted to the Yavusa Nadokana under the provisions of section 18 of the Native Lands Trust Act.
(d) In order to answer this part of the question, it should be clarified perhaps, by the honourable Senator Dr. Emberson-Bain, who is this "another landowning group" that she is talking about or referring to, which is not the acknowledged owners. Further, we would like to know what is this veitarogivanua ruling that she is referring to because as I have said, there has been no such ruling.
(e) The NLTB is guided by the Register of Native Lands under the Native Lands Act on land ownership. The leasing process is within its legal jurisdiction and discretion to act as it deems necessary under the provisions of the Native Land Trust Act. As far as NLTB is concerned, it has acted in accordance within the confinement of its legal and moral obligations under that statute.
HON. SENATOR DR. A. EMBERSON-BAIN.- Mr. President, Sir, the honourable and learned Attorney-General and Minister for Justice has just asked what is this veitarogivanua that I am referring to.
Firstly, to refresh the memory of the honourable Prime Minister and Minister for Fijian Affairs and the staff of the Ministry of Fijian Affairs, two veitarogivanuas have been conducted in the past and officially recorded. The first one was actually on 29th November, 1926 and I can confirm that the honourable Prime Minister is aware of that; that established the rightful claim of the traditional owners that are descendants of the Bicilevu family.
Secondly, contrary to what the honourable and learned Attorney-General and Minister for Justice has said, a veitarogivanua was conducted on 11th August this year, in Korolevu Village near Tavua. When he gave his reply, he went on to effectively confirm that, but in his answer to part (a) of the question, he denied that it has not taken place. In fact, it has taken place.
My supplementary questions are; can the honourable Prime Minister and Minister for Fijian Affairs assure the House that the NLTB has not in any way sought to interfere with, overturn or compromise the ruling of the NLC, and in turn fought the legitimate right of the traditional owners to gain their ancestral land?
Secondly, can the honourable Prime Minister and Minister for Fijian Affairs give his assurance to this House and to the public that none of his Ministers has any kind of personal or financial interests, either directly or indirectly in the Yaqara Studio City Development or the Fiji Waters Development, both developments taking place on the land in question. Can he confirm that none of his Ministers is in any other way related or associated with any of the claims who purport to have a claim to ownership over the Yaqara land?
HON. SENATOR Q.B. BALE.- Mr. President, Sir, both questions are new in the sense that I think the honourable Senator could have realised that those are substantive questions in their own rights. If they were intended to be asked, they should be in the substantive question, even anticipating answers to the questions raised.
To be fair to the honourable Senator, I do not have the answers ready with me, Sir, but I would be happy to obtain the answers to those specific queries and give them to the honourable Senator, either personally or on the floor of this House, whichever way she prefers.
MR. PRESIDENT.- Honourable Senator, can you just wait for a while?
HON. SENATOR DR. A. EMBERSON-BAIN.- Mr. President, Sir, I am requesting if I can ask my first part of the supplementary question.
MR. PRESIDENT.- You are asking a new question. These are supplementary questions, for the purpose of elucidating the questions that you had asked originally.
HON. SENATOR DR. A. EMBERSON-BAIN.- Mr. President, Sir, I do believe that I have a right to raise them, but the honourable and learned Attorney-General also has a right to come back with the answers at a later stage, given the fact that it does require him to go and search for the answers. So, I accept his response, Sir, but what I am asking him to do is to respond to my first part of the question, and that is in relation to the veitarogivanua that had taken place.
HON. SENATOR RATU G.K. CAKOBAU.- Mr. President, Sir, a point of order. Standing Order 51 - Relevancy. She is not a member of the VKB, even to ask about the native land or even about Yaqara. So, you just keep quiet and you will learn.
HON. SENATOR DR. A. EMBERSON-BAIN.- Listen, don't you point at me, honourable Senator!
MR. PRESIDENT.- Order!
HON. SENATOR RATU G.K. CAKOBAU.- Why? You should not talk about anything to do with NLTB or about our land!
HON. SENATOR DR. A. EMBERSON-BAIN.- You are saying that I have no right!
HON. SENATOR RATU G.K. CAKOBAU.- Yes, you have no right, you are not even in the VKB.
HON. SENATOR DR. A. EMBERSON-BAIN.- And you are being offensive!
HON. SENATOR RATU G.K. CAKOBAU.- I am talking about something that is right. You are not in the VKB, so do not talk about it.
MR. PRESIDENT.- Order!
HON. SENATOR F. ANTHONY.- Sir, this is not the first time that the honourable Senator Ratu Cakobau has behaved in the manner he has. This is unparliamentary, disrespectful and brings disorder to this House. This is not on!
MR. PRESIDENT.- Sit down!
HON. SENATOR F. ANTHONY.- That is not on!
MR. PRESIDENT.- Now, honourable Senator, because you were not listening, I will put that question to an end. We will move on to the next item.
HON. SENATOR DR. A. EMBERSON-BAIN.- The honourable and learned Attorney-General has not answered my question and because it was ....
MR. PRESIDENT.- I have made a ruling.
HON. SENATOR F. ANTHONY.- Sir, may I say that as President of this august House, you have a responsibility to be fair and that when questions are asked, they should be answered.
MR. PRESIDENT.- Order, I have made a ruling.
HON. SENATOR ADI L. CAKOBAU.- Mr. President, Sir, a point of order, Standing Order 2 - Ruling of the President must be adhered to.
HON. SENATOR DR. A. EMBERSON-BAIN.- Yes, that's all you have to say.
HON. SENATOR ADI L. CAKOBAU.- That's all I'm saying, honourable Senator.
MR. PRESIDENT.- Order!
HON. SENATOR ADI L. CAKOBAU.- If you have anything to say, do it the proper way - stand up and speak. He has made his ruling. You sit down!
HON. SENATOR DR. A. EMBERSON-BAIN.- Don't you tell me to sit down!
MR. PRESIDENT.- Order!
HON. SENATOR ADI L. CAKOBAU.- Keep quiet, I have a right, like you have.
MR. PRESIDENT.- Honourable Senators, before I call on the next item, I have already said why I had put an end to that question. It is simply because honourable Senators were not listening to me, so I decided to put an end to that question and then I called for the next item.
If you want to ask a new question, you put it forward in writing for the next meeting.
That particular debate on the question of ownership of Yaqara raises more questions than answers. On 14th February 2005, the company was issued a 99 year Crown lease No 15734 by the Department of Lands and Survey of the Government of Fiji, for Crown Land totaling 1091.2668 hectares and effective from 1st January 2003. The specific purpose of the use of the land is described as for the “Development of the Studio City”.
Why is NLTB representative sitting on the Yaqara Board of Directors, when the Department of Lands issued the 99 year lease?
How will NLTB General Manager, Semi Tabakanalagi demarcate his interests of being a icon of Native Lands Trust Board but at the same time, representing the interest of the land developer called Yaqara Group?
It appears that something drastically amiss in this clean up of NLTB, because the abolishment of NLTB"s commericial arm company "Vanua Development Corporation(VDC) was one of the main demands made to deposed Fiji Prime Minister, Laisenia Qarase by Army Commander, Frank Bainimarama prior to the 2006 coup.
The List of Demands:
1.)Drop the controversial Qoliqoli and Reconciliation, Truth and Unity Bills.
2.) Abolish the Native Land Trust Board'’s commercial arm Vanua Development Corporation. The NLTB has to only serve its core function of helping the landowners.
3.)Audit the provincial council's’ financial status, which had not been done for the past years.
An excerpt from a Fiji Government website article describes the lack of credibility with Tabakanalagi:
Minister hears Natadola landowners grievances
Jun 22, 2007, 17:30
The Interim Minister for Fijian Affairs, Heritage, Provincial Development and Multi-Ethnic Affairs Ratu Epeli Ganilau along with officials and board members of the Native Lands Trust Board (NLTB) were in Nadroga yesterday (21/06/07) to meet the disgruntled landowners of Natadola.
The landowners of Sanasana Village are unhappy with the way the NLTB has been handling their piece of land on which the Natadola Hotel is currently being constructed.
Sanasana Village is located near the coast of Nadroga and comprise of seven clans, 12 sub-clans and 18 tokatoka’s (extended families). Ratu Epeli was accompanied yesterday by the Chairman of the NLTB Standing Committee, Ratu Tuakitau Cokanauto and Board Members Ro Epeli Mataitini and Nemani Buresova.
Representing the NTLB were Acting General Manager Joveci Tuinamuana, Deputy General Manager Operations Semi Tabakanalagi, Client Relations Officer Mataiasi Bolatagane and Mesake Mara.
According to Village Headman Ilami Nabiau, the village was now split over the Natadola saga. Speaking in Fijian, the 83 year old said the village was looking forward to meeting Ganilau and were determined to find the truth about April Investment.
“All we want to know is the truth behind this people so we can solve this problem here and now. If the government is telling the truth, than so be it.
“All we’re saying that a lot of money has been spent by the FNPF in financing the investment company who’s contract has been terminated. We want to know if the development at Natadola will continue. If so, who will fund its continuation,” he said.
Mr Nabiau said an invitation had also been extended to the Roko Tui Nadroga to come and hold discussions with the villagers but this did not eventuate because of differences that arose between the two factions. He says he hoped the Minister will clarify these issues with them in the meeting.
Another villager who wished to remain anonymous said the village comprised of two factions; one for the government and the other for April Investment.
“Some of them had been given money by Mr Salliot and this is why they want the company back,” the villager said.
Villagers at the meeting yesterday were clearly frustrated at the NLTB officials saying they had fooled them.
“ You (Tabakanalagi) came to us during the early stages of our discussions regarding the use of our land. You had so many things to say and yet nothing has happened so far,” another villager said.
“Having the Fijian Affairs and the Ministry of Lands advising us is enough. We don’t want the NLTB.”
The villagers also questioned whether it was lawful for Keni Dakuidreketi to hold two positions simultaneously. Dakuidreketi was a former member of the NLTB Board and CEO of April Investment while primary discussions for developments at Natadola was taking place.
Ratu Epeli reminded the villagers of the NLTB’s role saying they were first founded to protect the rights and interest of the indigenous landowners. He also urged the villagers to reconcile, solve their differences and work towards a resolution that would benefit them and their future generation.
“You must come to a final resolution so that for a start, we don’t lose the money of the people who contributed to the FNPF and also the investment of the FNPF is at stake here,” Ratu Epeli said.
Ratu Tuakitau told the villagers that problems will be encountered along the way and encouraged the villagers to embrace the future and the many good things that the Natadola Project would yield them.
The Minister and Ratu Tuakitau both reassured the villagers they would do all they can within their constitutional powers to ensure that those who had abused their positions for personal gains would be brought to justice.
-End-
"Villagers at the meeting yesterday were clearly frustrated at the NLTB officials saying they had fooled them.
“ You (Tabakanalagi) came to us during the early stages of our discussions regarding the use of our land. You had so many things to say and yet nothing has happened so far,” another villager said.
“Having the Fijian Affairs and the Ministry of Lands advising us is enough. We don’t want the NLTB.”"
A Fiji Times article also raises serious questions about the honesty of Tabakanalagi. The following is an excerpt of the FT article:
Landowners query board loyalty
Fiji Times
Monday, July 24, 2006
THE Native Lands Trust Board was last week required to provide landowners of one of the country's largest tourism developments the reassurance that they are committed to protecting landowners' interests.
NLTB's Deputy General Manager Operations, Semi Tabakanalagi was swamped with concerns regarding the loyalty of the board during a meeting with landowners from Sanasana Village in Sigatoka.
Seven landowning units from the village own the land on which the Natadola Marine Resort project is currently being developed. A delegation led by Mr Tabakanalagi traveled to the village on Thursday to address grievances raised by landowners.
However, during the meeting Mr Tabakanalagi and his team were bombarded with claims that the board was working more with the project developers and either ignoring or sacrificing landowners' interests.
Landowners' spokesman, former cabinet minister and senator, Apisai Tora said the four units he was representing were concerned about their rights and interests being sacrificed to ensure the project continued.
Mr Tora said a major concern of landowners was Keni Dakuidreketi's position with NLTB while being the main developer for the project. "This is a clear case of conflict of interest and this has raised a lot of eyebrows within the landowning units of Sanasana."
"Since Mr Dakuidreketi is the main developer, we are concerned that all decisions made by the board would be made to see that the project went ahead regardless of whether our rights were sacrificed," he said.
"Even though NLTB is our trustee, it seems that it is pushing the company's interests," said Mr Tora. "We have some grievances with several works that the developers are carrying out so how do you expect us to trust that the board will address our concerns when the developer is sitting on the board," Mr Tora asked.
Attempts to contact Mr Dakuidreketi yesterday were unsuccessful. But Mr Tabakanalagi said there was nothing to worry about because the board always fought for the rights and interests of landowners. He promised that no decision would be made in favor of the developers because Mr Dakuidreketi was a member of the board.
"You do not have to worry about Mr Dakuidreketi because that is our job to see that he carries out his duties properly. NLTB is always for the landowners and your rights and interests are always our priority," Mr Tabakanalagi said.
However, several legal precedents made by several notable cases in Fiji have thrown the spanner in the works with regards to the Fijian understanding of land ownership and squaring that particular claim with past legal cases. One particular paper, addresses the Fijian Understanding of the Deed of Cession.
Several of these legal case has been addressed by a working paper authored by Sunil Sharma LLB. The following excerpt is the conclusion of the paper:
Conclusion
The control of all native lands is vested in the NLTB, which makes the decisions for the landowners, but without consulting them. The relationship according to the Native Land Act is one of trustee and beneficiaries yet the beneficiaries are not consulted on matters affecting them. As already seen the members of the matagali or the matagali itself do not have the locus standi to bring out an action against the NLTB.
Although there are other remedies available, however, the legislation has deprived the right of the landowners in suing the NLTB in their personal capacity or as a landowning group. The cost involved for a judicial review is expensive therefore a deterrent to the landowners as majority of them are poor. The role of the landowners is that of being the "shadow" or the "instruments" of the NLTB, the legislation's governing the natural resources directly shows a disregard to the Fijian culture and traditions.
On the "white paper" the landowners have been given the recognition but this is not so in reality, most of the landowners do not know what will happen to their land because they do not participate in the decision making process. The NLTB deducts 25% and there is a further 30% deducted before the members receive their share. The amount finally received may not be much because of the number of members eligible to receive their shares.
The current crisis in Fiji can therefore be attributed to the current system, the decision by the landowners not to renew the expiring leases under ALTA is justified because they don't receive much financial benefits after all. They will be better off using their own land and earning an income for themselves. The NLTB has for very long enjoyed itself by "riding on the shoulders" of the landowners, times are changing the landowners sooner or later will discover the importance of their role in the real sense. Its now or never, the concerns of the landowners must be heard they need a fair share of the "cake" which rightfully belongs to them.
It is suggested that the following recommendations might be considered:
1. Update on the legislation's dealing with the Native Lands in Fiji.
2. NLTB to reduce their 25% administrative fees, needs to be downsized or dissolve the NLTB completely.
3. New legislation's to incorporate the participation of the landowners in the decision making process
4. Vakavanua arrangements to be made legal
5. Chiefs to play a formal role in dispute settlement before the matter can be heard by the Native Land Commission.
Another view of the legal precedence in Fiji case, demonstrates that despite the understanding of most landowners, mostly reinforced by misconstrued information delivered unapologeticaly by some ill-informed writers like Bolatiki.
The following excerpt is from the ruling form a Supreme Court case: Kaliavu v Native Land Trust Board [1956] FJSC 1; [1955-57] 5 FLR 17 (27 August 1956)
IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION
[No. 107 of 1954]
BETWEEN:
MELI KALIAVU
VITALE VOKAVOKA
VILIAME ROGICA
LEONARE BIU
KOSETATINA TAGOVIKI
All of Lawaki, Sawakasa, Tailevu North, Members of the Mataqali
"MATANIVUGA"
Plaintiffs
AND:
THE NATIVE LAND TRUST BOAD
Defendant
Mataqali land - members suing in personal capacity - no right of action.
The plaintiffs, five of a mataqali of some 150 members, instituted this action against the Native Land Trust Board. They claimed damages and all injunction restraining the defendant Board from granting a lease to one Yee Cheng Foo of a portion of the land owned by their mataqali. The plaintiffs sued in their personal capacity as members of the mataqali and not in a representative capacity on behalf of the mataqali.
Held. - If any damage has been suffered by the mataqali as a result of any action by the Native Land Trust Board for which the Board is liable in lam to pay damages, the mataqali could undoubtedly recover them. It was not however open to individual members to sue and recover damages in their own personal capacity. Nor could the plaintiffs succeed in their personal claim to the equitable remedy of an injunction.
Judgment for the defendant Board.
F.M.K. Sherani for the plaintiffs.
D.M.N. McFarlane for the defendant.
HAMMETT, J. [27th August, 1956]-
In another Supreme Court decision in the case of Dikau v Native Land Trust Board [1986] FJSC 7; [1986] 32 FLR 179 (9 May 1986) which Justice Rooney concluded that:
There is nothing in that section which gives a right to any member of a mataqali to challenge the action of the Native Land Trust Board established under the Native Land Trust Act, Cap. 134. The section seeks to regulate the rights of Fijians in accordance with native custom. This is not a suit in which the question of the tenure of land amongst native Fijians is relevant. It is an action in which a group seeks to assert a right on the basis that they have a beneficial interest in land owned by the mataqali of which they are members.
The common law and the rules of equity cannot be applied to a system of land holding which is alien to and independent of the law of England as the received law of this Dominion. In the result there is in existence a system of legal dualism.
A mataqali cannot be equated with any institution known and recognised by common law or statute of general application: The composition, function and management of a mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by a customary law separate from and independent of the general law administered in this Court.
In the case of Native Land Trust Board v Narawa [2004] FJSC 7; CBV0007.2002S (21 May 2004) may have also placed the issue of mataqali rights under a new light by overturning the ruling by Justice Rooney in the case of Dikau VS NLTB (1986).
The excerpt of the Appeal Courts Judgement is as follows:
Reasons for Judgment of the Court of Appeal
16 The Court considered the legal position of the mataqalis. It accepted as “clearly established” that an individual member of a mataqali could not sue and recover damages personally where damage had been suffered by the group – Meli Kaliavu v Native Land Trust Board (1956) 5 FLR 17; Naimisio Dikau No 1 & Ors v Native Land Board & Anor CA No 801/1984; and Waisake Ratu No 2 v Native Land Development Corporation & Anor (1987) Civil Action No 580 of 1984.
The Court referred to divergent views expressed by Rooney J in Naimisio Dikau No 1 and Cullinan J in Waisake Ratu No 2 on the question whether the traditional interests of a mataqali could be recognised under Fijian law. In the latter case, Cullinan J said that he did not consider that a mataqali or a tokatoka was an institution alien to the applied law of Fiji. It did not require judicial ingenuity to equate either of these bodies to an unincorporated association. Their members shared a communal proprietary interest. While land holding might be individual in places they were nonetheless communal proprietary rights such as those over the veikau or forest. Cullinan J had said:1.
“Such groups are of common agnatic descent, the individual membership and leadership and the physical location and proprietary rights of which are by statute recorded in the Register of Native Lands, preserved by the Registrar of Titles. Not only has the mataqali been recognised as a central proprietary unit by the statute law of Fiji for over a hundred years now (to the extent indeed that the law provides for the devolution of the lands of an extinct mataqali), so also have all the individual divisions of the Fijian people by the act of statutory registration. How then can any of those groups be regarded as alien to such statute law?”
17 The Court of Appeal referred to various authorities relating to the common law recognition of customary title including In Re Southern Rhodesia [1999] AT 211; Amodu Tijani v The Secretary of Southern Nigeria [1921] 2 AC 399; and Mabo v The State of Queensland (No 2) (1992) 175 CLR 1. The Court then said:1.
“These and other authorities to which we were referred put beyond doubt the proposition that native customary rights and obligations may be recognized by the common law and enforced in the courts. More particularly, in the case of mataqali, it may, by representative action or by action brought by all those belonging to the mataqali as an unincorporated association, bring proceedings in the court seeking common law or equitable remedies for any breach of rights it is able to establish.”
18 The Court took the view that, in reaching his conclusion that the plaintiffs lacked standing to bring the proceedings, the learned primary judge had relied, at least in part, on the principles stated by Rooney J which the Court of Appeal found to be incorrect. His Honour had thereby erred in law. As will appear from these reasons it is unnecessary in this case for the Court to express any view on the matter which is of considerable importance and is best considered in the light of findings of fact after trial.
1.
19 The Court considered the representative character of the action and whether the primary judge was right to conclude that the plaintiffs lacked the standing necessary for them to bring the proceedings in a representative capacity. It referred to Order 15 rule 14 of the High Court Rules noting that the only requirement of the Rule is that persons intending to be represented have “the same interest in the proceedings”. Counsel for the Board submitted to the Court of Appeal that if an individual litigant, a member of a proprietary unit, wanted to pursue an infringement of a communal right he would need the majority support of the unit which he sought to represent before he could pursue such proceedings. The Court of Appeal did not accept that submission. There was nothing in the Rule to suggest that requirement. The cases made it clear that the person seeking to bring an action in a representative capacity did not have to obtain the consent of those whom he purported to represent – Markt & Co Limited v Knight Steamship Company Limited [1910] 2 KB 1021 at 1039.
1.
20 Their Lordships concluded that the plaintiffs should be permitted to bring their proceedings on a representative basis. All of the members of the mataqalis had a common interest in ensuring that their agreements are being properly administered by the Board and that they receive whatever is due to them from their agreements. If the agreements had not been properly administered and Timbers (Fiji) were guilty of breaches for which damages had been payable but had not been claimed, the members would also have a common grievance. Whether that were so in fact could only be determined at trial. It was also apparent from affidavits filed that a substantial number of members of the mataqalis supported the plaintiffs in their action. It was also apparent that a substantial number did not. But they did not appear to be advocating a different course of action, rather they favoured taking no action at all. If the action were to succeed they would share in its fruits. If it did not, they would not be liable for costs.
1.
21 There was, in any event, no other course open to the plaintiffs. They could not sue personally nor bring an action as an unincorporated association because they would not obtain unanimity. In addition, the plaintiffs were persons of standing. The Court accepted that they were likely to have acted responsibly in bringing the proceedings.
1.
The Grounds of the Petition
22 There were some twelve grounds of appeal some of which were of little substance and arose out of references by the Court of Appeal to the views of members of the group, the status of the respondents/plaintiffs and the availability of other remedies. It may be said immediately that none of these would warrant the grant of special leave to appeal. Of the remaining grounds, 2.1 to 2.7 were in the following terms:
1.
“2.1 in reversing the judgments of Rooney, J in Naimisio Dakai No 1 & Ors v Native Land Trust Board & Anor Civil Action No 801 of 1984 and Timoci Bavadra v Native Land Trust Board Civil Action No 421 of 1986, by holding that a Mataqali may by representative action or by action brought by all those belonging to the Mataqali as an unincorporated association, bring proceedings in court seeking common law or equitable remedies for any breach of rights it is able to establish;
2.2 in holding that Rooney, J was wrong in holding that a tokatoka or a Mataqali are institutions alien to and not recognised by the common law and in agreeing with the views expressed by Cullinan J in Waisake Ratu No 2 v Native Land Development Corporation & Anor (1987) Civil Action No 580 of 1984;
2.3 finding that the proceedings instituted by the Respondents/Plaintiffs were properly constituted representative actions, contrary to Fijian custom and in dimunition of customary law when such rights, custom, laws and usages are constitutionally recognised and protected under sections 6(b) and 186 of the Constitution;
2.4 holding that the Respondents/Plaintiffs had the necessary locus standi to bring or continue the present proceedings against the Petitioner on behalf of their own and other Mataqali, when the respective Mataqali had no authority under customary law to do so;
2.5 in failing to consider that the decision making process of Mataqalis generally, and specifically in relation to the issue of whether to institute a court action or not, is according to customary law through a process of consensus, thus disregarding customary law;
2.6 in applying John v Rees [1970] 1 Ch 345 and Markt & Co v Knight Steamship Co [1910] 2 KB 1021 at 1039 to the circumstances of the present case, by holding that the person seeking to bring an action in a representative capacity including native Fijians does not have to obtain the consent of all or some of those he purports to represent;
2.7 in finding that the members of the Mataqalis had a common interest, common grievance and that if the causes of action were made out, the relief obtained would likely to be beneficial to the members or at least most of them;”
Seed NewsvineClub Em Designs
Saturday, June 02, 2007
The Gordian Knot.
The issue of published legal thesis on Fiji was addressed by a Fiji Island Business article and covers the Interim Attorney General of Fiji and portrays his Master's Thesis from University of Hong Kong's Law faculty, published in 2002.
It seems that more enlightened minds are now re-evaluating the legal underpinnings of native institutions in Fiji. Another published paper titled: "The Fijian Understanding of the Deed of Cession Treaty of 1874" written by an indigenous lawyer even questioned the role of NLTB and native land, which inextricably unravelled a Gordian Knot of sorts.
This is the excerpt of the Fiji Island Business article:
Club Em Designs
It seems that more enlightened minds are now re-evaluating the legal underpinnings of native institutions in Fiji. Another published paper titled: "The Fijian Understanding of the Deed of Cession Treaty of 1874" written by an indigenous lawyer even questioned the role of NLTB and native land, which inextricably unravelled a Gordian Knot of sorts.
This is the excerpt of the Fiji Island Business article:
AG’s thesis casts doubts on chiefs’ body, Fijian loyalty
Samisoni Pareti
(Image right)Aiyaz Sayed Khaiyum with Nailatikau
Fijian institutions like the Bose Levu Vakaturaga (Great Council of Chiefs) and the Fijian Affairs Board should have evolved or be dissolved over time if they were to keep abreast with the changing needs of indigenous Fijians, a key member of Commodore Frank Bainimarama's regime had suggested.
The perpetual existence of these creatures of British rule could only put such Fijian institutions in a 'time warp' and give rise to the consolidation of power to and "self-preservation" of an elite few.
Aiyaz Sayed-Khaiyum when writing his thesis for a masters in law degree at the University of Hong Kong in 2002, had also raised the possibility of these institutions operating independently of the state.
This, he wrote, would not only weaken the state but also throw into question the allegiance of Fijians to the nation-state.
Observations Khaiyum made in his thesis titled 'Cultural Autonomy-Its Implications for the Nation-State' has become much more relevant in light of recent pronouncements and actions of the interim government of which he is the attorney-general.
Not only has the interim regime suspended the operations of the Bose Levu Vakaturaga (BLV) after the chiefs rejected its nomination for a vice-president in April, the interim government has also announced its intention to review and most probably change the membership of the chiefly body.
BLV review will continue
Work on this, however, is in doubt after the European Council-following its meeting with three senior ministers of Bainimarama's regime in Brussels last month (that included Khaiyum)-issued a strong statement calling for, among other demands, the preservation of the "substantial independence and functioning of the Great Council of Chiefs (GCC)".
FIJI ISLANDS BUSINESS has learnt however that the legal advice given to the interim regime has given it the thumbs up to continue with the proposed review and changes to the membership of the BLV, saying it is proper under the law.
The council was not created by the 1997 constitution like other constitutional offices, but set up through an act of parliament.
As such, the minister responsible, in this case Ratu Epeli Ganilau as Fijian Affairs minister, is perfectly well within his rights to be doing what he has proposed to do, and this, according to the legal opinion, would not be in breach of the European Commission's demand.
Since the December 5 coup last year, Bainimarama had also on several occasions spoken publicly of his desire to introduce common roll into Fiji's voting system. This was another key point of Khaiyum's thesis.
Calls for common roll not new
In fact he argued that the two issues of common roll and the dismantling of the Fijian institutions like the Bose Levu Vakaturaga shared a common historical link.
Khaiyum wrote that when Sir Everard im Thurn, who became governor of Fiji in 1905, introduced his policy of 'galala', or greater freedom to indigenous Fijians, "some European members of the Legislative Council wanted indigenous Fijians to be made "free men" by ridding them of separate administration, which they also viewed as being financially mismanaged.
"Yet the European settler representatives in the Legislative Council made an about-turn in their individualisation mission when the girmitiyas started agitating for the right to vote and common franchise based on a common roll."
In appointing Khaiyum into his cabinet in January, it is not clear whether Bainimarama had known about the young lawyer's strong views about the Fijian administration and the very detailed research and analysis he had given it in his thesis.
'Chiefly system must go'
"Cultural autonomy must have a sunset clause," Khaiyum wrote in his conclusion.
"Its prolonged continuation will place a stranglehold on the very members it seeks to protect and it will concomitantly disallow the critical cultural space in which a just, vibrant and coherent nation-state can flourish while embracing diversity."
That observation was preceded by a quote from the late Siddiq Koya, then a young, fiery National Federation Party orator in Fiji's pre-independent Legislative Council.
"Why should there be poverty in the village? The place is your own, yet you are imprisoned.
"We are telling you to wake up! We want to give you the right that God gave you.
"Think for yourself who you are-you are a man!
"We want to give you the honour and dignity due to you.
"You are a man, you are an individual, and I respect you.
"But for goodness sake, your old chiefly system must go!
"It is not helping you, it is not helping this island, it is not helping us. So let's change and move forward!"
'Cartel of leaders'
Khaiyum's research showed that calls for the abolishment of Fijian institutions like the BLV were nothing new, tracing it back to the administration of colonial governors like im Thurn.
He cited numerous reports compiled during the 1950s that spoke of the need to inject changes into the Fijian administration, and the resistance to such calls by people with vested interests like Ratu Sir Lala Sukuna.
"The Spate's comprehensive report of April 1959 which examined the 'economic problems and prospects of the Fijian people' brought to the fore that separate administration was no longer useful.
"He noted Sukuna's interpretation of culture and his solution through a (re) structured separate administration 'were biased by his half conscious vested interest in a society in which chiefs were chiefs.'"
Later, Khaiyum went onto observe: "European contact in Fiji was primarily in the East/North which consequently led to the confirmation of a new chiefly elite from those regions.
"This led to the establishment of a cartel of hereditary leadership families and their cliental network.
"Madraiwiwi (Sukuna's father), Sukuna, Cakobau, Mara, Ganilau and lately Qarase have all been beneficiaries of this bias forged through the perpetuation of the separate administration.
"On the other hand, those such as Bavadra and Gavidi, westerners were not accepted and were outsiders-did not represent indigenous Fijian culture-since they encroached upon the territory of the establishment clique."
Allegiance to state
That separate and autonomous bodies like the BLV could work against the state, Khaiyum said, was evident in the coups of 1987 and 2000. Such a state of affairs should be worrying as it could also throw into question the loyalty of Fijians to the state.
"The manner in which the separate institutions reacted to and were utilised following the election of the Labour coalition governments and their subsequent overthrow in 1987 and 2000 demonstrated that separate institutions (Fijian Affairs Board, Bose Levu Vakaturaga, Bose ni Yasana, Bose ni Tikina, Bose ni Koro) were perceived to be and indeed viewed themselves to be independent of the institutions of the state.
"Autonomy or more appropriately the institutions of autonomy can become completely independent at the expense of superseding the institutions of the state-coming into direct conflict with the state and creating and perpetuating the ethos of the particular race and difference.
"This ultimately creates not only a very weak state but also stunts the growth of nationhood". In other words, cultural autonomy could provide benefits to minority groups, however culture-based institutions could get caught in a time warp and subsequently not responsive to the changes and needs of the group which has autonomy."
Indeed one of the effects of creating culturally autonomous institutions which invariably is in relation to the 'other' is the homogenising of the identified group.
"This process increases the propensity to relegate and ignore intra group inequalities and injustices such as socio-economic and gender issues. At the same time, by placing too much emphasis on culturally autonomous institutions, individuals and groups could have the tendency to not only become insular but also have negligible levels of allegiance to the nation-state."
Military ineptitude
The role of the Fiji military was hardly mentioned in the in the interim attorney-general's thesis. All it got was one or two paragraphs in the preface of his paper.
"Mahendra Chaudhry's reign as Prime Minister lasted only a year. He and members of his cabinet were taken hostage by a George Speight and seven armed 'gunmen' on 19 May 2000.
"One would have thought that given the few number of kidnappers a rescue of the Prime Minister and cabinet in particular by the Fiji Military Forces, which prides itself in its military prowess, was obvious and a relatively easy task. However this was not to be.
"The ineptitude, inertia and reluctance displayed by the military and other law enforcement agencies in the first few weeks of the crisis allowed the kidnappers a free hand in mustering support at the parliamentary grounds for their 'cause,' holding the Prime Minister and his Cabinet in captivity for 56 days."
Club Em Designs
Thursday, January 18, 2007
Seeing Trees or a Forest?
Fiji Village reports a landmark ruling by the Suva High Court, which has given the landowners of a Serua Mahogany plantation the ability to apply for a forestry harvest license.
This is the excerpt of the Fiji Village article:
Serua Mahogany Landowners Entitled Harvesting License
By fijivillage
Jan 19, 2007, 17:19
In a bench mark ruling, the Suva High court yesterday ordered that Serua mahogany landowners are entitled to a license to harvest their own mahogany.
High court judge Jiten Singh ruled that they are now entitled to a license from the Native Land Trust Board to harvest mahogany planted on their land after the mataqali Naua applied to the NLTB for a license to log the mahogany which was denied.
In his judgment Justice Singh highlighted that the evidence before him indicates that the financial benefits to the landowners are far superior if they log their own mahogany since they have ready buyers for their products
Lawyer representing the landowners Isireli Fa said they have already negotiated a price for the mahogany which is estimated to earn the landowners $1.8 million after costs of extraction.
Prior applications filed by the landowning unit, was understood to have been denied by the agency responsible for indigenous land in Fiji, the Native Lands Trust Board (N.L.T.B).
This court ruling has also inextricably set up a new paradigm, allowing other native landowning units to contest the multitude of resources available on their ancestral land. This new found ability, further underscores the inability of the Great Council of Chiefs (GCC) to achieve such empowering actions, for the people that they supposedly spoke for.
Another contention is that, why these avenues of livelihood were denied in the first place by the N.L.T.B? The agency charted with responsibility of acting and managing these prime acreages of real estate, with the best interest of the landowners in mind; only had dubious intentions, well embedded in greed and subterfuge.
This court ruling has also confirmed firmly held suspicions that, these native institutions were created for the sole purpose of benefit ting this minority indigenous elite in Fiji. The unintended consequences of the agenda driven influences from a clumsy aristocratic hierarchy was, the political dramatization of class warfare in Fiji, resulting in a track record of coups.
Club Em Designs
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