Friday July 25, 2014 - 6:17 am | Login

Could a Limitation Act provide some answers to land disputes?

Brisbane Diary

I had the privilege of working recently with lands department. It was a great experience because not only was I able to put some of my communications theory into practice, but also, I took the opportunity to learn much more about the work of such an important government department, having spent the last 13 years or so of my career in the private sector.

Few things stood out for me there and I spend this time reminiscing about the experience and hopefully raise few issues, which I think could be useful to any other department.

One of the first things that probably struck me was the fact most people, especially landowners are still under-utilising the services available at the department. People often have a lot of misconceptions about the role of the department—some often under the assumption the department was engaged in giving away customary land to investors when their role, as stipulated under relevant laws, are simply to facilitate land transactions.

Often landowners, they told me, would only run to the department after they have run into problems with whoever they might have been dealing with.

The department’s advice is for landowners to seek appropriate information from the department first before entering into any negotiations with anyone over their land. The Constitution, as adopted at Independence, gives absolute right to landowners to decide how he/she wants to use their land. As such there is absolutely nothing the department can do to stop landowners from either leasing their land or having it registered or mortgaged, depending onwhat they want to do. Of course there have been issues of corruption involving certain individuals taking advantage of the loopholes but that does not render the entire department inefficient, as there are people in there who have the interest of the landowners at heart and work diligently to serve the real interest of landowners.

But I was particularly interested in a suggestion made by one of the senior staff in relation to finding possible ways of minimising the ever-increasing land disputes that we have had since 1980, or even before that. The suggestion is for the country to have in place a Limitation Act that could set the limits on when and under what circumstances can someone claim their rights of ownership over a block of land.

There are many instances where people who might have lived in a particular area for a number of years; that many of their younger generations might have grown into believing they belonged there. For some, elders of the village did not take the time to pass on their history, or deliberately avoided telling them the true story. In many of these cases, so-called “mankam” or “newcomers” are usually very well established that they can claim they belong to that particular area. As such relocating them to their original tribe or village might be very problematic—not only for them but also for the accepting community or village concerned.

On Tanna, anybody would tell you that people—until the first contacts with the outsiders, lived nomadic lives pretty much round the island. These early ancestors were no doubt hunter-gatherers who were not particularly fixed to a particular location on Tanna. Because Tanna landownership rights are traditionally determined through name-giving practices, problems have arisen where for example, a particular customary name might be found in more than one village or community and often there is ambiguity in determining who might be the original custodian of that particular name.

Where a Limitation Act might help minimise such problems is, it could greatly help chiefly bodies such as the Nikoletan Council of Chiefs if they could set down definitive periods of time for when someone can claim a right to a land. And there are many periods in history that could be pin-pointed so that if anyone has a claim over a land, he/she has to be able to trace his/her ancestry back to that time, otherwise they lose their right to lodge a claim.

Of course different tribes and villages might have their own version of events but some kind of definitive periods would draw the line on how far back in time people can make claims. For example, I use again the Tanna example; it is orally handed down that people on Tanna had lived through different periods differentiated by “ships” (Niko) such as ‘Kaprarau’ or ‘Kaplalau’, which was when people lived as hunter-gatherers. Then we had a couple other ‘Nikos’ ‘Nengaus’ or ‘Nidadas’, before people settled where they are today. I am sure Nikoletan could easily determine this. The point is to avoid situations where due to population pressures some people are finding themselves being evicted because someone has won some sort of a court ruling. In some of these cases, I have heard of claims by people tracing their history back to Creation and I am not sure how they could substantiate that.

As a result of some of these disputes people have migrated permanently or sought refuge elsewhere due to land disputes among family members. While this demonstrates the typical strong ni-Vanuatu sense of affinity and communal living, it just results in further strains on the sheltering village. If not now, then in the long run. As a result instead of fixing a problem, the next village just gets loaded with more problems for the future, which is why I think some serious thought is needed into coming up with some sort of legal mechanism that could help determine land ownership rights.

Of course different islands will have their own oral histories that are probably marked by different events in history. Kastom can play a significant role in identifying these periods of time. Take the Tongoa people who are claiming certain rights over land in Efate, notably Forari and a few other places, including Port Vila. To what extent can these people lay a claim over land that are already populated by people? Can the Tongoa people still make a legitimate claim, and if so, on what basis? Many of Tongoa claimants have only just started living in these places for the last 20 or so years.

Sometimes the cause of many land disputes are business-related, which means people who have lived in a particular area might know very well how to adapt due to the demographic changes within their community.

Documented history in Vanuatu only begun after our first contacts with the outsiders in the 1500s or 1600s, which means all of what we now know might have been passed down through the generations by word of mouth. With demographic changes, there is bound to be more inaccuracies in oral histories held by some of the current generations, which means that if no proper checks and balances are instituted, many people could find themselves facing land security problems in future.

The thing that amazes me is that some people have the gullibility to believe oral histories that date back to Creation or the so-called ‘Big Bang’. These are just some of my thoughts on what I thought was an important suggestion. Maybe something positive could be done.

On a lighter note, I would like to end by saying that before my 10-days encounter, I had had absolutely no experience in the public sector and had no idea how it felt like to work at a public office. I had heard reports of quite lax work attitudes in government offices. Well, at the department of lands, strict adherence to time is emphasised by the department’s security personnel who often greet customers as they enter the department. However because they are quite strict in their adherence to the 4.30pm knock-off time(not so much the 7.30am official opening hour), staff can’t stay in their office beyond 4.30pm, or they risk spending the night in their office. The building is padlocked after 4.30pm.It turns out security services were hired due to past incidences of angry landowners barging in and venting their frustrations at department staff and sometimes threatening them. Missing files and documents made it a necessity for the department to employ security personnel.