What Worries You, Masters You!

Fiji Sun's new Editor is already showing his true colors, as belligerently displayed in his last job as the former Fiji Times Editor. Sun Fiji News Ltd. shareholders include C J Patel and Co Ltd, Vinod Patel and Co Ltd and Fijian Holdings Ltd.

Kakaivalu biased political stance, obviously slanted towards the SDL party, may have prompted to him to establish a flawed position (since the article bears no author's name)about the Peoples Charter and the amendment of the 1997 Constitution.

The excerpt of the Fiji Sun article:

The constitution and the People’s Charter
Last updated 11/16/2007 8:58:01 AM

The new vehicle for the way forward for Fiji is the Peoples Charter.
Military spokesman Lieutenant Colonel Mosese Tikoitoga in a media statement said the military would force changes in the charter for the people to see better future leaders of the country. He also said the military remained firm on its stand that politicians seeking to contest the next general election would see what the charter will have on them.

So we must expect changes in the Charter. In his address at the 68th United Nations General Assembly in New York Interim Prime Minister Voreqe Bainimarama told delegates that “Fiji’s situation is not only complex; its problems are deep rooted”. There are no quick fixes. The country now he says is at a very critical cross-road; its situation could escalate into more serious deterioration and instability. It is imperative that any such greater disaster or civil strife is averted.
[Bainimarama] urged the international community to help develop for Fiji a political and governance framework that would be truly democratic, accountable, inclusive, equitable, and non-racial and which unified Fiji’s diverse communities as a nation.
The Peoples Charter is the Government’s vehicle for this and will tackle the challenges at three levels and they are:

• to restore stability, law and order and confidence;
  
  
• to strengthen institutions for good governance including transparency and accountability and an independent and effectively functioning judiciary;
  
• to carry out major reforms in the economy
  

PM Bainimarama said at the UNGM: “The Peoples Charter, once formulated and adopted will provide the strategic framework or fundamental foundation within which the interim government and also successive elected governments will be expected to operate. “In the current absence of an elected parliament, there is the issue of legitimacy and mandates. To deal with this, the interim government is willing to consider putting the draft Peoples Charter to a referendum to get the mandate of the people for the fundamental changes, including changes to the Constitution of Fiji, as may be considered necessary.”

At the Pacific Islands Forum held in Nuku’alofa, Tonga the PM said: “To address our fundamental problems that have besieged Fiji and help us realise our vision, my government has launched a major national initiative which will see the establishment of a 40-member National Council for Building a Better Fiji (NBBF) and the proposal to develop the “Peoples Charter for Change and Progress (PCCP). Through the PCCP a broad cross section of Fiji’s people will be fully engaged through consultation and participation to develop a comprehensive agenda of action and measures to address in a systematic and comprehensive fashion the long outstanding fundamental challenges. It will then provide strategic framework for successive governments.”

Already there is opposition to the charter. The ousted Laisenia Qarase-led Soqosoqo Duavata ni Lewenivanua Government has strongly opposed the move. In an interview Mr Qarase said: “The SDL Party’s stand against the proposed People’s Charter for Change and Progress remains. We are opposed to the charter for very good reasons, some of which are:

- the preparation of a charter, if necessary, should be left to an elected government
- the interim regime lacks the popular mandate necessary to prepare such an important document
- the proposed charter cannot bind future elected governments
- the legality of the charter would be questionable
- the charter cannot supersede the Constitution which remains the supreme law of the land
- the rights of indigenous Fijians are excluded from the charter.

We should accept changes in the new Charter. The question that we need to ask is: How will the People’s Charter merge into the constitution? Pacific Island Forum leaders have given their support to Mr Bainimarama for the changes.

However, speaking on behalf of the Pacific leaders Tongan Prime Minister Feleti Sevele said: “I think we have made it quite clear that Fiji will continue on the existing constitution and the laws ... Anything beyond that is not acceptable.”
He made this comment after the Fiji PM said his government might change the constitution before the election.

From the outset we can confirm that some changes that have to be made will not be in accordance with the constitution thus making it unconstitutional. One change is the removal of the communal voting system which will end communal seats in the next parliament.

Communal seats date back to the early 1900s. In 1904, the British colonial authorities reserved seven seats in the Legislative Council for European voters; in 1929, provision was made for wealthy Indians to elect one representative also. Indigenous Fijians were represented by nominees of the Great Council of Chiefs and did not vote directly for their representatives until 1966.

In the 1960s, the Indo-Fijian dominated National Federation Party (NFP) began to press for universal suffrage on a common voters’ roll. Indigenous Fijian leaders opposed this demand, fearful that it would favour Indo-Fijians, who then comprised more than half of the country’s population. As a compromise, a number of national constituencies were established, allocated ethnically but elected by universal suffrage, but 25 of the 36 seats in the Legislative Council remained communal.
In the 1970 Constitution leaders then agreed to establish a 52-member House of Representatives with 27 communal and 25 national constituencies. Indigenous Fijians and Indo-Fijians were each allocated 12 communal constituencies; minority groups were allocated 3.

After the 1987 coup and with the abrogation of the 1970 Constitution a new 1990 constitution was put in place. It made all parliamentary seats communal, with a built-in indigenous majority. 37 seats were allocated to indigenous Fijians and 27 to Indians, despite the near parity of their population numbers at that time. 5 seats were assigned to minority groups. The 1990 constitution was revised again in 1997-1998. Again the communal seats were retained with 23 seats allocated to indigenous voters, 19 to Indo-Fijians, 1 to Rotuman Islanders, and 3 to minority groups; the remaining 25 represented open constituencies.

The new change will have to be made but we need to answer this question: How can this change be done when we don’t have a parliament with the 1997 Constitution still intact? Amendments or changes to the constitution can only be done in parliament. Can it be done through a referendum? The constitution is silent on referendum so the outcome if the interim government goes ahead with it will be unconstitutional.

Commenting on the matter New Zealand Prime Minister Helen Clark said and I quote - “I don’t think the commodore himself has a clear idea of how these changes can be accomplished in a constitutionally credible manner.”

The process forward in Fiji she said had to be credible. That rules out, I must admit, any changes to the constitution. The problem now faced by the interim government in moving the country forward has been created by the Prime Minister when he dissolved parliament when he had executive authority with him after the 5th December military bloodless coup.

PM Clarke said: “This is the problem when you close down your parliament and act in a way that is clearly unconstitutional and illegal and finding a pathway back from that is tortuous.” So what is the way out now to make the Peoples Charter work?
We know for the fact that the constitution cannot be changed or amended without a parliament.
The charter if passed, will be a dictatorial document as it will force successive governments to adhere to something that they do not support.
What will happen if a new government throws out the Charter because it is not part of its manifesto? Will the military come in again with their guns and take over power?
To make it work the only other option is to abrogate the 1997 Constitution but this as PM Clark had said, it would be tortuous.

Another question that we need to ask is: What will be the new course taken by the interim government if the people through the referendum reject the Charter?

Although, the Fiji Sun Editor raises some serious questions about the amendments to the 1997 Constitution; the Constitution has provision for it to be amended, however under the Parliament. However, since there is no Parliament, the proposed referendum, may rest the matter of legitimacy for good because referendums are more of a direct democracy than Parliament. Since a referendum was not called in the establishment of all 3 Fiji constitutions, 1970, 1990 and 1997 respectively; all have failed the nation. Perhaps a referendum was the missing link. What if the people choose not to have the People's Charter inquires the Fiji Sun Editor? What if they do, retorts S.i.F.M.

The purest form of democracy in Fiji may in fact be unconstitutional. So what is better, 100% octane democracy or Constitutionalism which may in fact be a watered down version of democracy?

In a paper by Constitutional Expert Yash Ghai and Jill Cottrell titled "Constitution Making in Fiji: Context and Process" highlights the hindered process called democracy, when the timing and sequence of events are called into question:

A quick count of individual submissions (relying on names 18) indicates that presentations were made by 114 Fijians, 88 by Indo-Fijians and 21 others. Among the organizations that made submissions, local churches clearly predominated. It is clear that many of the views presented were orchestrated. A bit like an Amnesty International campaign, standard forms of presentation were made available by political parties and other groups for their members to sign and submit. Lal wrote of a submission by the Arya Samaj ‘which will be repeated – worse, read word for word – countless times in the days and weeks ahead’. 19

But by no means all were of this type. The speed with which the commission embarked on tours around the country and overseas was only possible because it made no attempt to undertake any form of civic education (neither its deadline nor resources allowed any other option). Although the level of literacy in Fiji is relatively high, and the previous few years had been very political so there was probably a high degree of awareness of the broad concept of a constitution, the population at large was almost certainly uninformed about the details of the constitutions which had prevailed in the country, and certainly of the options.

Indeed,the events of the previous 6-8 years would almost certainly have led the ordinary person to think merely in terms of the system of government and electoral systems - in other words of the question of how the constitution could prevent (for Fijians) or not obstruct(for Indo-Fijians) the coming to power of another ‘Indian dominated’ Government.

It is easy to criticise the commission for lack of civic education, as we do ourselves. But we must remember the constraints of resources and time over which it had no control. We should also note that the commission was under some pressure to dispense even with public hearings (including from both Reddy and Chaudhry), on the grounds that there had been sufficient articulation of constitutional options and presentation of submissions to previous commissions.

Fiji as a society has come to an important political junction. The calls for Fiji to return to democracy by the international community has been heard before, first in 1987 and then again in 2000. On both occasions, Fiji followed the garden path of legalities that twist and turn. The question that is often trivialized is whether, the path used in 1987 and 2000 actually brought Fiji back to the direct democracy-the purest form?

While Fiji Sun Editor quotes from the New Zealand Prime Minister, Helen Clark on the subject of Constitutionalism:

“This is the problem when you close down your parliament and act in a way that is clearly unconstitutional and illegal and finding a pathway back from that is tortuous.”

Sadly, the Fiji Sun editor either neglects the fact or selectively omits that New Zealand does not have a constitution. New Zealand's supreme law is a collection of statutes (Acts of Parliament), Treaties, Orders-in-Council, Letters patent, decisions of the Courts and unwritten constitutional conventions. There is no one supreme document — the New Zealand constitution is not codified or entrenched. It would appear, that Clark or the New Zealand Government as a whole should be the last to talk about unconstitutional matters, as an article published by International Herald Tribune outlines.

In addition, Fiji Sun Editor quoted Tonga's Prime Minister, Feleti Sevele:

“I think we have made it quite clear that Fiji will continue on the existing constitution and the laws ... Anything beyond that is not acceptable.”

With all due respect to the Tongan Prime Minister, it is beyond the pale for a Country ruled by a monarchy to place any caveats on a democratic country that was torn by racial inequities and eroded by the ingrained corruption, compounded by a civil service run on Ethno-nationalistic paradigms.

It is also reprehensible for Tonga or her Prime Minister to comment on Fiji's multi-racial society when, their own nation places a quota on the number of person of Indian heritage living within their borders. Has this form of ethnic cleansing, ever been addressed by these egalitarian nations. Or does this just underscore the depth and width of hypocritical reasoning by people; who are willing to turn a blind eye to these nuances in good governance for their political agendas.

The Scottish Philosopher, John Locke who published "The Second Treatise of Civil Government" in 1690 is perhaps more knowledgeable and enlightened than Helen Clark. Locker lays out guiding legal principles and logic which Fiji as a society should examine, at this political juncture. The 19th and final chapter is titled "Of the Dissolution of Government" and present some justifications for Unconstitutional acts.

Sec. 211. HE that will with any clearness speak of the dissolution of government, ought in the first place to distinguish between the dissolution of the society and the dissolution of the government.

Sec. 214. First, That when such a single person, or prince, sets up his own arbitrary will in place of the laws, which are the will of the society, declared by the legislative, then the legislative is changed:

for that being in effect the legislative, whose rules and laws are put in execution, and required to be obeyed; when other laws are set up, and other rules pretended, and inforced, than what the legislative, constituted by the society, have enacted, it is plain that the legislative is changed.

Whoever introduces new laws, not being thereunto authorized by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative.

Sec. 220. In these and the like cases, when the government is dissolved, the people are at liberty to provide for themselves, by erecting a new legislative, differing from the other, by the change of persons, or form, or both, as they shall find it most for their safety and good: for the society can never, by the fault of another, lose the native and original right it has to preserve itself, which can only be done by a settled legislative, and a fair and impartial execution of the laws made by it.


Sec. 240. Here, it is like, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust? This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative. To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust?

If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?

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Fiji Water's Carbon Trade- A Can of Worms?

The issue of trading carbon off-sets has forced Fiji Water to come clean with their proposal, amid the mass hysteria of their shipping practices.
Blog-TerraPass comments on Fiji Water's environmental track record.

"Understand that the carbon community holds Fiji Water in roughly the same regard they do Hummers. That is, with a disdain that borders on the irrational[...]"

The issue of carbon foot print is a contenscious issue also facing California's jet-setting Governor, Arnold Schwarzenegger according to Sacramento Bee article. Excerpt of Sacbee article:

Gov. Arnold Schwarzenegger crisscrosses the globe in a private Gulfstream 400 jet, advocating environmental virtues after signing a significant global warming reduction bill last year. He says he offsets his plane's greenhouse gas damage by financing projects that reduce carbon emissions elsewhere.

But the governor refuses to reveal how much money he has spent on emissions credits, making it impossible to determine how much he has reduced his carbon footprint. The governor also refuses to say how many hours he has flown.

"As is the case with most public officials, personal and financial details of their life are often kept private," said Schwarzenegger press secretary Aaron McLear. "It's important that a public official is able to have some kind of a private life, and that's why we have a policy not to discuss his private financial life."

Schwarzenegger's Gulfstream 400 plane emits as much as 4.9 metric tons of carbon dioxide per hour, according to the online luxury journal Helium Report, roughly the equivalent of what a small passenger car produces in one year over the course of 8,000 miles.

New York Times article excerpt:

[...]The Fiji Water Foundation, led by Lynda and Stewart Resnick, Fiji’s owners, has also pledged money to protect the Yaqara Valley watershed, the main source of Fiji Water, and to preserve the Sovi Basin, a vast lowland rainforest owned by native Fijians that is home to many plant and animal species.


The Yaqara is important to Fiji Water, but the Sovi Basin is important to all of Fiji,” said Glenn T. Prickett, a senior vice president of Conservation International, a nonprofit group that has been helping Fiji Water devise and carry out its programs. “The Fijians are poor people, and without this money, logging would be their only economic alternative”[...]

The question of who actually benefits from the carbon offsets; is something the displaced native landowners have to ask themselves.

Although, Conservation International Vice-President was correct in stating that most of Fiji's native inhabitants are poor. It is also worthwhile to pursue the parameters of that statement carefully because it infers erroneously that, Fiji Water's carbon trading plan will converted to cash and bundles will be handed out to "the people" as if it grew on trees. Whether it is the citizens of Fiji or the native owners of Yaqara; both segments should not bank their hopes or prayers on corporate trickle down economics.
How many native landowners or Fiji Citizens are part of this Fiji Water Foundation? Is the entity more of a convenient tax deduction vehicle; recognized by the IRS and not Fiji's Inland Revenue agency, because Fiji does not have double taxation agreements with the U.S Government according to a website that publishes an alphabetical list of countries that have maintained tax treaties with the US.

In fact, Fiji Water does not pay royalties(using volumetric standards) directly to any landowning unit. The ownership of Yaqara is also in question and appears to be one of those blotches on the conscious of Fiji Water and the Government.

The issue of ownership of Yaqara has been addressed by a post by S.i.F.M.



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The Lady Is A Tramp.

Fiji Times article quotes from the Rewa Paramount Chief, who was part of a church delegation visiting the Chair of the People's Charter, Archbishop Petero Mataca. The excerpt of the Fiji Times article:

Sorry: Ro Teimumu

Friday, October 26, 2007

REWA high chief Ro Teimumu Kepa has admitted to being a part of the delegation of concerned Catholic church members who visited Archbishop Petero Mataca.

The visit was to ask Archbishop Mataca to step down as the co-chair of the National Council on Building a Better Fiji. Ro Teimumu had earlier denied being part of the delegation that visited Archbishop Mataca.

"Yes, I was a part of the delegation but I did not want to say anything at first because I did not want to make it a public issue," she said.

"But now that the Archbishop has made a statement with regards to the meeting and the issue that was discussed, I felt it was time for me to say that I was a part of the delegation. "I really want to apologise for denying my presence at the meeting to the reporter who had called me and asked me about it."

Ro Teimumu, Ratu Suliano Matanitobua and Kenneth Zinck visited Archbishop Mataca. When asked if there was a possibility of a split in the Catholic church after the decision by the Archbishop, Ro Teimumu did not directly say there was a split but admitted there were a lot of people with strong feelings about the Archbishop's decision.

Raiwaqa parish priest Father Kieran Maloney said he strongly disagreed with Archbishop Mataca's decision to co-chair the National Council. He said the acceptance was disgusting but not surprising.

"We really want to urge people to continue to attend church because it is for the people too and not only for the Archbishop.

"The church is for us and we should continue to go to church and pray for the church and its leadership," said Ro Teimumu.

The failed defamation campaign against Archbishop Mataca, has forced those in the shadows to drag out the indigenous rights issue, in a feeble attempt to rekindle the flames of dissatisfaction in the minds of the ignorant. Their spin doctoring poorly and speculatively paints the People's Charter as a clear and present danger to the indigenous Fijian race. Nothing could be further from the truth.

Fiji Times article covers the opinion of the Aristocrats in the Rewa province. This comes in the wake of another Fiji Times article quoting from representatives from Somosomo Taveuni warning the teams for the People's Charter stating that, the village was off limits.

The excerpt:

Somosomo bans People's Charter teams

1635 FJT
Wednesday, October 31, 2007

Update: 4.35pm THE chiefly clan of Lalagavesi, Somosomo will not allow any teams conducting awareness programs on the People's Charter into Somosomo.

Traditional spokesman Epeli Matata said the teams may visit other villages on Taveuni but the chiefly village of Somosomo would be out of bounds for them.

The military has been holding awareness programs on the People's Charter.

Charter anti-Fijian: Rewa

Friday, November 09, 2007

REWA, one of Fiji's three largest provinces, yesterday rejected the proposed People's Charter on Building a Better Fiji largely because it disagreed with efforts to ignore the existence of indigenous Fijians.

Ro Dona Takalaiyale, the leader of the Sauturaga clan and spokesman of the Rewa Bose Vanua, issued Rewa's position in a statement yesterday. Ro Dona described the charter as "a creation of non-racial Fiji and written by two foreigners without input from Fijians or their elected representatives".

Ro Dona also voiced concerns about the interim Prime Minister Commodore Voreqe Bainimarama's public statements about his desire to abolish all communal seats through the People's Charter.

"Also Lt-Col Mataitoga's statement that Affirmative Action will be abolished under the charter. Also the charter is inconsistent with the UN Declaration on Rights of Indigenous People's Article 3-5 where indigenous people are entitled to participate in the political life of the state. "It is inconsistent with the 1997 Constitution where race is recognised as an integral element of the nation of Fiji," he said.

Ro Dona said the Bose Vanua also resolved to boycott any referendum or election that will be influenced by the Charter.

Commenting on the review of the Great Council of Chiefs, Ro Dona said the vanua remained steadfast in its support of the suspended GCC's stand that the interim Government was illegal and that its actions including the review of the GCC were illegal and unconstitutional.

"The Bose Vanua resolves that it will not accept the outcomes of the review of the GCC by the interim Government-appointed committee and that it would not participate in any reconstituted GCC arising out of the recommendations of the committee," he said.

Earlier this month, Ro Filipe Tuisawau, the nephew of Rewa paramount chief Ro Teimumu Kepa, warned the indigenous population to be wary of the People's Charter because it would not allow for indigenous issues to be raised in Parliament.

He said this would greatly affect the indigenous people.

It appears that the Fijian aristocracy have launched another mis-information campaign; to shore up support for their version of social slavery. While calling for Fiji's rapid return to democracy- a farcical suggestion because all right thinking people understand that, Chief's involvement in Democracy is an oxymoron.

It is also amusing to read the concerns about indigenous rights being undermined by the People's Charter; as if the aristocracy had been given a monopoly to exclusively comment of matters pertaining to all indigenous issues. It was this monopoly that reared its ugly head in Fiji post 2000 coup, when the Paramount chief of Rewa, Ro Teimumu Kepa paid a social call with George Speight and the Rebels holed up in Fiji Parliament; while dismissing any notion to visit hostages, who were still held in nearby meeting rooms within the Parliamentry complex. It was this monopoly of Fijian chiefs that indirectly formented the riots in downtown Suva both in 1987 and 2000.





Ro Dona described the charter as "a creation of non-racial Fiji and written by two foreigners without input from Fijians or their elected representatives". Ro Dona raises the issue of the 1997 Constitution and selectively omits that that document was written and compiled by two foreigners as well. It is also the high water mark of hypocrisy, not to question the formation of the Great Council of Chiefs, an aristocratic entity imported by the British. Of course, anything foreign that does not erode the cultural exuberance of the Chiefs is kept on a pedestal; while anything progressive and visionary like the People's Charter is denounced, ridiculed and disdained by the same layer of despots.




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Just the Facts Maam!

Fiji's former Chief Justice, Sir Timoci Tuivaga, whose correspondence to the Editor of Fiji Sun, reveals much of his sinewy characteristics to obfuscate. The excerpt of the letter:

Misleading report
Fiji Sun 11/7/2007 7:25:44 AM

In Dr. Brij Lal's series of articles entitled "The process of political readjustments - the aftermath of the 2006 coup," he made a bad error of fact in relation to myself as Chief Justice and two other judges concerning the abrogation by the military of the 1997 Constitution on 29 May 2000.

Dr. Lal wrote

"Another institution similarly embroiled in controversy after the coup was the judiciary. The causes of the division in it go back to the aftermath of George Speight's attempted coup in May 2000. Differences arose in the judicial ranks over the Chief Justice Timoci Tuivaga's advice supporting the military's proposal to abrogate the 1997 Constitution to resolve the impasse. In this stance he was reportedly supported by two fellow judges Michael Scott and Tuivaga's successor as Chief Justice, Daniel Fatiaki."

The above statement is misleading in that I gave no such advice as alleged by Dr. Lal. How he attributed to me something that never occurred is most surprising from a normally perceptive and careful political and social analyst.
The military's action regarding the 1997 Constitution which was entirely unilateral caught everyone by surprise. The chronology of events during the May 2000 political crisis does not bear out the unfortunate statement made by Dr. Lal. If I may say so, it is always in the interest of factual reporting that historical records should not be rehashed for whatever reason by public commentators.

With all due respect to the Chief Justice Emeritus; How, When and Where the historical record is rehashed, is simply not his prerogative to make. Nor is he in any position to dictate how history views his derailed train of decision making.

Amnesty International article contradicts Tuivaga's recollection of history:

Chief Justice Timoci Tuivaga, who had blamed the Constitution for Fiji’s ongoing political instability and urged substantial amendments, retired in September. He was replaced by Daniel Fatiaki who was appointed Chief Justice despite controversy over his role, with Timoci Tuivaga, in the drafting of post-coup emergency decrees which purported to abolish the Supreme Court and the Constitution. In November, the government nominated Timoci Tuivaga for the International Criminal Court. The Chief Justice and non-governmental organizations in Fiji had supported Indo-Fijian High Court judge Nazhat Shameem’s nomination.

A reknown legal mind, the late Sir Vijay Singh raises serious questions in an article published in the Journal of South Pacific Law, regarding Tuivaga's decisions after the 1987 coup in Fiji. This is an excerpt:

A DIMINISHED JUDICIARY*
By Sir Vijay R Singh**

Despite the Chief Justice Sir Timoci Tuivaga's explanations, judges, lawyers and lay persons at home and abroad remain profoundly perturbed at his enthusiastic engagement in politically charged extra-judicial business. Judicial independence is far too important a public interest issue not to be publicly discussed when the occasion demands, lest silence induced by tact or timidity be misconstrued as acceptance of the unacceptable. A judge who strays beyond his judicial functions cannot escape public scrutiny and criticisms of his extra-judicial activities.

In 1987, all superior court judges had courageously demonstrated their commitment to uphold the constitution and the rule of law and endured harassment of all kinds. Judge Kishor Govind was imprisoned at Naboro and Judge Rooney held under house arrest for days. All eventually resigned rather than serve under a military regime. Sir Timoci Tuivaga CJ was one such judge but although he was later recalled to the bench, we lost most of the others for good. They deservedly stood high in universal pubic esteem. But sadly, the CJ's recent conduct has caused much dismay. Sir Timoci advised the President on the Constitution's provisions that he could invoke to dismiss the Coalition government. The President acted accordingly.

At issue is not the correctness of the advice -- although that, too, is highly questionable -- but the propriety of judges acting at all as the President's legal counsel. The entirety of the legal profession in the public and private sector, and talent abroad, was available to the President. The severely denounced decision of Australian Chief Justice Garfield Barwick to advise Governor General John Kerr how to dismiss Prime Minister Gough Whitlam in 1975 should have been a salutary signal to any judge not to follow a disreputable precedent. But the Chief Justice did just that, and he cannot evade the consequential commotion.

An even graver grievance concerns the CJ's draft of a decree for the military to promulgate that purported to re-establish the judiciary, and in the process, also to abolish the Supreme Court. This was far from being a benevolent involvement, as Sir Timoci would like us to believe, because implicit in his drafting of the decree were hazardous assumptions of great constitutional and political significance. Firstly, that the military had at that point in time acquired the authority in law to rule by decree, and secondly and accordingly, the judiciary and the constitution from which it drew its authority, went out the window together when the military claimed to have 'wholly removed' the constitution.

Also, for about a hundred years the Privy Council in London had been our final court of appeal and, after the establishment of the Fiji Court of Appeal, the highest of our three superior courts structure. Until, of course, a lieutenant colonel deposed the Queen in 1987 and thereby severed our access to Her Majesty's Privy Council.

To fill the void, the Supreme Court of Fiji was created but the decree Sir Timoci helpfully draft abolished the Supreme Court. Neither the military nor the CJ has claimed paternity of this eccentricity -- that amputation of the highest of our courts was essential surgery to successfully address our afflictions, the foremost of which then were the safe release of the hostages and the restoration of law and order.

The military, for its part, sought to distance itself from this most peculiar prescription for the treatment of our ills. It published a statement two days after the decree, assuring all that "the judiciary has not been tampered with" (Sunday Times 11 June p.25).

Weighty questions inevitably arise. Did the military make the incorrect statement because it did not know that the CJ drafted decree had in fact abolished the Supreme Court? And that thereupon Lord Cooke, Sir Gerard Brennan, Sir Moti Tikaram, Sir Keith Mason and Mr Justice Toohey had been summarily dismissed? Also, that the CJ had installed himself as a judge of the Court of Appeal?

The military's unawareness of these and other aspects of the decree may explain its incorrect statement, but that excuse will inevitably transport the CJ to even a lower and more perilous perch. Was he less than frank with Commodore Frank Bainimarama and kept him in the dark of the decree's important provisions?

Whose agenda required the Supreme Court's abolition -- the military's or Sir Timoci's opposition to the Court, and why? If the military's, why did the CJ not seek the Law Society's support to preserve the long established judicial system, instead of completely ignoring the legal profession while he collaborated with the military?

Did Sir Timoci's adventures cause or contribute to the resignations of Justices Jai Ram Reddy as President of the Court of Appeal and Ratu Jone Madraiwiwi as a High Court judge? And might we not lose more judges who find the CJ's modus operandi unacceptable, as shown up in Judge Anthony Gates's ruling last week in a matter when Sir Timoci tried to have a case in which he is a defendant assigned to a judge of his selection?

And crucially, what, in Sir Timoci's view, is the source of his present claim to be the Chief Justice? Is it the Constitution that he was sworn to uphold, or the military decree that he obligingly drafted to restore his and other judicial offices? The two propositions are mutually exclusive; they cannot reside under the same roof at the same time. Sir Timoci cannot escape these and other disquieting questions -- all products of his questionable conduct in office.

In his typically understated fashion, Peter Knight, then Law Society President, had observed: "The Chief Justice had other options open to him." Expediency, arbitrary decision-making, acting as the executive's legal counsel and the military's legal draftsman were not in Mr Knight's contemplation. Sic transit gloria.



*This article first appeared in the Fiji Times of October 17, 2000.

** Sir Vijay R Singh

Sir Vijay Singh's read law in London and is a Barrister of the High Courts of England, Australia and Fiji. He was a Minister in Ratu Mara's pre and post-independence governments and also Attorney General and Speaker of the House. Sir Vijay is presently in private practice in Suva.

Even the Wikipedia article on Sir Timoci Tuivaga, actively corrects his own account of the events. The excerpt:

Coup controversies

Tuivaga upheld the independence of the judiciary in the wake of the two military coups that rocked Fiji in 1987. His actions in a later coup in 2000, however, generated much controversy. Together with two other judges, Michael Scott and Daniel Fatiaki (who later succeeded him as Chief Justice), Tuivaga advised the then-President, Ratu Sir Kamisese Mara, to abrogate the Constitution, as requested by the Military. Mara refused and resigned on 29 May.

An Interim Military Government, headed by Commodore Frank Bainimarama took power, abrogated the Constitution, and promulgated the Administration of Justice Decree, which Tuivaga had drafted. This decree abolished the Supreme Court, made the Chief Justice the President of the Appeal Court (of which, according to the constitution, he had previously been barred from membership). Another decree extended the retirement age of the Chief Justice from 70 years to 75. Fiji Law Society President Peter Knight condemned Tuivaga's actions, saying, "The eyes of the profession, the nation and the world are upon the judiciary.

It cannot be seen to openly condone criminal activity. It should as a matter of record that it will continue to occupy and function in its judicial role in the same uncompromising manner as it had done prior to 19th May." (These changes to the judiciary were subsequently reversed by a High Court decision to reinstate the Constitution on 15 November 2000. This decision was upheld by the Appeal Court on 1 March 2001).

Tuivaga was subsequently sued by members of the deposed government of Prime Minister Mahendra Chaudhry for his role in abrogating the constitution, which all judges were bound by oath to uphold.

In an interview with the Daily Post on 15 June 2000, Tuivaga defended his role, saying it was not an endorsement but a practical acknowledgement of "reality." "While a de facto government is in place it is impossible for me as Chief Justice not to acknowledge its actual existence as a matter of political reality," he said. The Interim Military Government, which he called "the only viable alternative government," needed to be recognized, he said, given the "situation triggered by the state of insurrection in the country which so far has proved insidiously intractable".

These changes to the judiciary authorized by the decrees that Tuivaga had drafted were subsequently reversed by a High Court decision to reinstate the Constitution on 15 November 2000. This decision was upheld by the Appeal Court on 1 March 2001. That year, he turned 70, the retirement age mandated by the restored Constitution. On 1 August 2002, Daniel Fatiaki succeeded him as Chief Justice.

Failed ICC candidacy

Following his retirement as Chief Justice, the Fijian government nominated Tuivaga as Fiji's candidate for a position on the new International Criminal Court (ICC). His role in the 2000 coup came back to haunt him, and the Fiji Law Society strongly criticized his nomination. In what the Fijian government saw as a humiliation, he was forced to withdraw his nomination during the balloting on 9 February 2003, when Samoan candidate Tuiloma Neroni Slade outpolled him.

Reconciliation and Unity Commission

In May 2005, Tuivaga spoke out in favour of the government's proposed Reconciliation and Unity Commission, which would, if established, have the power to compensate victims of offenses related to the 2000 coup, and amnesty to its perpetrators, subject to presidential approval. Tuivaga cautioned, however, that the workability of the arrangement would depend on the good will of the parties involved.

On 26 May 2005, the Rev. Akuila Yabaki of the Citizens Constitutional Forum expressed concern at reports that Tuivaga might be appointed to chair the proposed commission, reports downplayed by both Prime Minister Laisenia Qarase and Opposition Leader Mahendra Chaudhry.

Under investigation

In the wake of the military coup which deposed the Qarase government on 5 December 2006, Interim Attorney-General Aiyaz Sayed-Khaiyum announced on 22 January 2007 that there would be an inquiry into allegations concerning the role of the judiciary in the events of 2000. It was reported that Tuivaga might be subject to the inquiry. [1] In a letter to the Fiji Sun on 23 January, Tuivaga expressed surprise, saying that the Constitution of Fiji makes no provision for investigating retired members of the judiciary.

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Ballu Kahn lively figure in business, politics

Ballu Khan has been a controversial figure in Fiji business and political circles since winning a US$9.2 million ($12 million) contract in 2004 to supply a new computer system and maintenance services to the Native Lands Trust Board, which administers indigenous land holdings throughout the island nation.

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The Measure of a Republic in Fiji.

Wikipedia definition of a Republic includes the different types:- A republic is a state or country that is not led by a hereditary monarch, where the people of that state or country (or at least a part of that people)have impact on its government, and that is usually indicated as a republic.

Fiji is amid many changes. According to the latest census data, the population of persons with Indian heritage have dropped, according to the Fiji Times article. However, an article by Micheal Field titled "Census reveals Indians fleeing Fiji" in Stuff online Magazine frames the census data in negative conotations. Judging from the sensationalism used by Field, the actual census data does not denote that anyone is "fleeing" and it appears to be another concoction derived from Fiji's census data that was not fully released by the Bureau of Statistics.


Fiji Times article quoted from two chiefs from the Rewa Province who took issue to the recent remarks made by the Interim Prime Minister in article that appeared in the Sydney Morning Herald (SMH)regarding the Methodist Church of Fiji and their epoch of hatred preached from the pulpit.
The following is an excerpt of the SMH article:

Rumblings of a revolution

October 27, 2007


F

iji has never had a coup like this one. As it turns into a revolution against the country's chiefly and church establishment, Hamish McDonald talks to its leader. The grandly titled King's Highway leads from Fiji's capital into the hinterland of Viti Levu, but on leaving the lowlands it abruptly degrades to a muddy, potholed dirt road, winding between jagged mountains covered in vivid green trees and scarlet flowers.

On Sunday, up by a little village of corrugated-iron houses, a man we'll call Iona (Jonah) is walking back from church, dressed in a pale blue shirt and tie and grey lava-lava kilt. He seizes the chance of a lift back to Suva.

Inside his ramshackle house, Iona grabs clothes from trunks around the furniture-free matting floors, thrusts them into a sports bag, and we set off. Iona introduces himself as a farmer and Methodist lay preacher: "The Holy Spirit has sent you here today," he declares. "Amen. Hallelujah."

On the road down, through the shabby rice-milling town of Nausori, and then over a bowl of kava at the tin shanty on Suva's fringes occupied by his ailing 73-year-old father and some younger relatives, Iona talks about how Fiji's big events have affected people like him.

There was the coup attempt in May 2000 by the young failed businessman George Speight, who held the Indo-Fijian prime minister, Mahendra Chaudhry, and others hostage for 56 days, until outmanoeuvred and outgunned by Fiji military's commander, Commodore Voreqe (Frank) Bainimarama.

Then came a new government under Laisenia Qarase (pronounced "nGarasay"), at the head of a party representing the taukei or ethnic Fijians, the Soqosoqo Duavata ni Lewenivanua, or SDL, and after six years, a spectacular falling out with Bainimarama, who seized power.

Iona kept growing his cassava and taro on the plot of land allotted to him by his local chief, tribal land he is not free to sell, and seeking the will of the Holy Spirit in what was happening around him.

To him and his family, Qarase was a good prime minister. "He helped the poor. When there was flooding, Qarase gave money to replace the houses, and gave a small pension to my father," Iona says. "I don't think he ever steals, but maybe the money he gave out to the poor was not properly put down in the books."

Both Speight and Bainimarama come from Iona's province on Viti Levu's eastern side, Tailevu. The coup leader, now serving a life sentence on an island off Suva, gets a tick from Iona. "George would always give a cow for a big festival up in the province," he says. "He should get a pardon, because what he did was to help the poor people."

Iona and his family don't like what Bainimarama is doing and don't like the support he is getting from many Indo-Fijians such as Chaudhry, who joined the interim government as finance minister. "Indians are idol worshippers," he says.

They especially don't like the commodore's abrupt dismissal five months ago of the Great Council of Chiefs, the pinnacle of a traditional authority structure nurtured by the British that has some important constitutional powers, notably appointing the head of state, the president.

"He want to demolish all that system," says cousin Tevita, studying at a Methodist theological college. "He himself does not know what to do," Tevita adds. "He's relying on secret outsiders. They keep texting him on mobile phones and all."

So far, this view from the bottom, with its mix of patronage and conspiracies, hasn't counted much. Bainimarama's obstacles have mostly come from Fiji's institutions - the chiefs' council, the political parties, the legal system, some churches, the mostly Australian-owned newspapers, the human rights groups.

But the day that the grassroots voice will decide has suddenly grown closer, since Bainimarama agreed at a meeting with South Pacific leaders in Tonga on October 17 to hold elections for a new civilian government by the end of March 2009 and to abide by the result.

All settings unaltered, Qarase would probably sweep back in. He remains popular with ethnic Fijians whose vote is given extra weight in Fiji's electoral system. The ousted chiefs and Methodist leaders support him. Despite trawling through the files, Bainimarama's men have not found any corruption to pin on him.

But if Bainimarama has his way the settings will be altered. Pacific leaders pressed him to commit to holding the elections under Fiji's existing constitution and laws, but he didn't. Instead, as Bainimarama spelled out in an interview with the Herald this week, he hopes to sweep away the entire structure of racial-based voting that has ruled Fiji since independence in 1970.

"The countries that are urging us to return to democracy - I don't know if they understand how unfair the system has been over the last 20 or 30 years," Bainimarama says.

""Fijians live in a democracy with a mentality that belongs to the Fijian chiefly system. They decide for us who to vote for, our church talatalas [ministers] decide for us who to vote for. These are the Fijians living in the villages and rural areas. The provincial [chiefly] councils dictate for us who to vote for and we go along with that." "

Instead of voters having two votes, one for a general all-races constituency and one for a closed communal constituency, Bainimarama wants a single vote for all in multiracial constituencies.

"The common roll is the way to go," he says. "It takes away the race card."

He hopes the panel he co-chairs with the Catholic Archbishop, Petero Mataca, to draw up a "people's charter" will back this. Communal seats? "I am hoping they will do away with them altogether," he says.

Since most of the commodore's opponents, including the Methodist Church (sometimes called 'the taukei movement at prayer'), are boycotting the charter, there is a fair chance that it will do just that.

As Qarase observed this week, while waiting at his Suva house for a reply to his request for a meeting with the commodore: "I have a feeling that this guy, when he wants something, he must get it right or wrong."

But how to make it legal? Under the existing constitution, which Bainimarama has said is still in force, the only mechanism for amendment is by two-thirds vote of the House of Representatives, dissolved by order of the 86-year-old President, Josefa Iloilo, after the December coup.

"Parliament is not going to sit, that's for sure, so take away that option," says Bainimarama. "There's talk of referendum, we can do it through referendum. We have not stopped discussing how we can do it … there has to be some changes to the constitution because of the electoral reform, there has to be amendment."

The precise way then? "I leave that to the legal people," he says.

The chief legal person is the Attorney-General, Aiyaz Sayed-Khaiyum, an Australian-trained lawyer formerly with the law firm Minter Ellison in Sydney, who lost his permanent residency in Australia as part of Canberra's "targeted sanctions" against Bainimarama and associates, including any identifiable soldiers.

Sayed-Khaiyum won't be specific ahead of the charter, but says a referendum can carry great weight. Fiji's first constitution in 1970 was negotiated with London "by a handful of leaders" and then simply promulgated, he notes. The army coup leader Sitiveni Rabuka's 1990 constitution, from which the present one is derived by amendment, was "shoved down our throat at midnight".

A referendum and the eventual elections will be battles for the mind of Fijians such as Iona, with the traditional chiefs and many of the preachers ranged against Bainimarama.

In coming weeks, Bainimarama will fire his next salvo at recalcitrant chiefs, with a dossier detailing how they have played politics, and creamed off rents on traditional lands. With about half the Fijians drifting away from ancestral villages to the towns, the hold of the chiefs on them may be weakening anyway.

The commodore is equally scornful of the Methodist leadership, whose flock includes 80 per cent of ethnic Fijians and who have rejected the charter, calling for an immediate return to elections.

"They had been "sowing the seeds of [racial] hatred" since they backed Rabuka's coup, and were part of a traditional conspiracy of power against ordinary Fijians. "The chiefs, the politicians and the talatalas keep them suppressed so that they can take advantage of them every now and then," Bainimarama says.
"

He will fight them on Christian principles. "You know it's very easy to tell the people in the villages, who go to church every Sunday, and the first thing you are taught there is love," he says. "And if you don't love your neighbour, what's the use? But they will understand that."

The fourth arm of Fijian supremacy used to be the military, which has just 15 Indians among its 3527 full-time members (thanks to its rigorous physical standards and low pay, not any exclusion policy, insists a spokesman, Lieutenant-Colonel Mosese Tikaitonga).

Bainimarama - and other officers contacted - insist the military has done a 180-degree turn since supporting Rabuka. "When 1987 came around we thought Rabuka was it, until we realised that the people who had backed Rabuka did it for their own interests," he says.

Whether the standing of the army can help carry the debate remains to be seen. In the first months after the coup, soldiers cracked down on dissenters and petty criminals, with at least two dead from barrack-room bashings and humiliations. The troops returned to bases in May, and incidents have abated, but the lesson lingers.

"People keep inside what they think of this government, because they are very frightened," Iona says.

The Methodist Church is not not lying down. Its head of "Christian citizenship", Mamasa Lasaro, says none of Bainimarama's charges against Qarase or the chiefs have been proven. Fiji was no more or less corrupt than any other comparable country.

The church had set up branches for its minority of non-Fijian believers and was trying to engage with a multicultural reality. "We are struggling,' he admits. "But to say we are very racial, we are very communal - it's quite unfair."

Levelling the playing field could take generations, he says. "I think that is a very superficial view by a few army officers," Lasaro says, "because on the ground there is a feeling of insecurity. On one side the Fijians are very insecure about their identity and their destiny in their own country."

The constitution can also fight back, with Qarase's case for reinstatement coming before Fiji's highest court in March. And once it gets to open politics, Qarase's SDL will not hesitate to play the accusation that December was an "Indian coup", with Chaudhry the Machiavelli behind Bainimarama. "He was very much part of the planning process," Qarase says.

One of the commodore's red-line issues leading to the coup - Qarase's attempt to legislate ethnic Fijian ownership of inshore fishing grounds, known as qoliqoli - is also susceptible to counter-charges of alien influence against native Fijian interests.

"I think he was very much influenced by a few people in the tourist industry," Qarase says.

For his part, Bainimarama thinks the military is the only entity that can bring change. "No other entity that has an influence with the Fijians is professional and apolitical like us," he says.

As for any external influence over the Qoliqoli Bill, it had come from the Maori figure and New Zealand Foreign Minister, Winston Peters, he says. Peters had told Bainimarama he had personally headed off similar legislation because he foresaw "Maori killing Maori" over it.

Bainimarama throws up his hands at the idea Fijians need "generations" of protection. "They want us to remain in that shell, because they can take advantage of that," he says. "We should come out of this shell and think for ourselves, and do things that are right. And one of them is to recognise that another race is in Fiji. That's the only way forward.

"It's a revolution, but it needs to be done in Fiji … we were heading back into our cannibalistic days. We were going to get rid of the Indians and we would be just left on our own. And that would be worse for everyone."

This is an excerpt of the Fiji Time article:

Attack on church upsets chief

Thursday, November 01, 2007

REWA chief Ro Filipe Tuisawau described comments by interim Prime Minister Commodore Voreqe Bainimarama about the church and chiefs as inciteful and would definitely burn whatever bridges left between chiefs, church, the vanua and the interim regime.

Ro Filipe, the nephew of the Roko Tui Dreketi Ro Teimumu Kepa said, "we are just plain sick and tired of his childish and immature comments and shows that once again he is not of national leadership material."

He was reacting to Commodore Bainimarama's observations in an Australian newspaper that the church had been "sowing the seeds of hatred" since they backed Sitiveni Rabuka's coup, and were part of a traditional conspiracy of power against ordinary Fijians. "The chiefs, the politicians and the talatalas keep them suppressed so that they can take advantage of them every now and then," Commodore Bainimarama said in the article.

"The words of a leader must heal and build bridges but this leader destroys and hurts with his words and actions. We can only pray that this nightmare ends soon," Ro Filipe said.

"Despite the insults and hurt, all should be thankful that the Fijian chiefs and people have chosen to respect the rule of law. "As for the Charter, it cannot be a people's Charter because it did not originate from the people. The regime leader has publicly stated that the Fijian communal seats will be abolished and that the Charter structure will be used to achieve that. No right thinking Fijian must ever support this Charter which in the long term will make Fijians political refugees in their own land."

Although, the chiefs are entitled to their opinion however flawed it maybe; the truth of the matter may rest with the experience of Citizens Constitutional Forum (CCF) head, Rev. Aquila Yabaki as outlined in a Fiji Village article. The excerpt of the Fiji Village article:

Yabaki agrees with Interim PM
Former Methodist Church Minister, and CCF Executive Director, Reverand Akuila Yabaki said he agrees with the statement made by Interim Prime Minister, Commodore Frank Bainimarama said the Methodist Church leadership in Fiji has been sowing the seeds of racial hatred in the country since they backed Rabuka's coup in 1987.

Reverand Yabaki said the church leadership supported the last two coups by Rabuka and George Speight, but the big question is why they have changed their stance on the events of December 5th last year.

Reverand Yabaki said he was part of the church leadership in 1987, but he was told to go after he opposed the military coup. Bainimarama said the Methodist leadership was part of a traditional conspiracy of power against the ordinary Fijians and the chiefs, the politicians and the church talatalas keep the ordinary Fijians suppressed so that they can take advantage of them.

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A Sporting Kick In The Shins For New Zealand Soccer- Is Rugby Next?

The issue of travel visas for sports has come home to roost in Wellington as a New Zealand Herald article suggests, following the canceled soccer match in North Harbour by the game's ruling organization FIFA.
An opinion article in the Manawatu Standard describes the unintended consequences of such boisterous diplomatic posturing by the Foreign Minister, Winston Peters. If soccer world cup qualifiers where so cavalierly trivialized by the New Zealand Government, perhaps the economic impact report of the 2003 Rugby World Cup in Australia should be a stark reminder of the ripple effects of involving sports and petty politics; displayed recently by the New Zealand Government.

Fiji opposition an own goal
Manawatu Standard | Wednesday, 24 October 2007

Isn't it wonderful how our money can be spent on our behalf by politicians?

New Zealand Football is in line for compensation from taxpayers, possibly to the tune of half a million dollars, because Winston Peters decided he had an issue with Fiji's goalkeeper's father-in-law.

The goalkeeper's offence was being married, or possibly engaged, to a fairly lowly army officer in a country where there is a non-democratic government.

The same Mr Peters, and his Prime Minister, were recently in Europe watching the rugby World Cup, in which a team from Fiji was competing and doing rather well. The country's rugby side had had long links with the Fiji army, but that seems to have been ignored by our pious politicians.

And a cabinet minister is free to holiday in Cuba, which is as undemocratic as it is possible to be, without anyone batting an eye. And what about Tonga? Their move to democracy is half-hearted, yet there is no talk of banning sporting contact with that nation.

Then there is China. Our politicians are busy grovelling and greasing in a bid to establish a free-trade deal, but when did the residents of China last see a ballot box?

Now that the All Whites' home game against Fiji has been moved to Sydney, due to Mr Peters' meddling, what sanctions will our government propose to punish Australia for allowing the hated goalkeeper into their country? A ban on Kiwis holidaying on the Gold Coast, perhaps?

And if the game is going to be played anyway, what will have been achieved by the original ban apart from a big bill for New Zealand's taxpayers and the loss of home advantage for a sporting side fighting to win a place in the next Football World Cup?

Let us hope there is more astute thinking around these issues if Fiji hasn't returned to a form of democracy approved of by our politicians by the time the Rugby World Cup rolls around. If those in Wellington start banning players because it doesn't approve of their relatives' occupations, or their country's type of government, then the compensation bill in 2011 could make the Fiji football fiasco look like chicken feed.

The recent RWC grossed $NZ495m, with half of that going as profits to the IRB. That sort of money as compo would give taxpayers a serious headache if our meddling politicians choose to disrupt that tournament.

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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:

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;”

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