CASE
NOTE
VALELE
FAMILY
v.
TOURU
[2002] VUCA
3
The
Legality of Customary Land Disputes in
Vanuatu
DEBRA
MACKENZIE
INTRODUCTION
This
Court of Appeal decision appears to strike a serious blow to any notion of a
dual legal system in Vanuatu, as far as the process of land disputes are
concerned. The Court seemed to go out of its way to dispel the notion that land
disputes might be settled outside of the formal Court system. In a particularly
formalistic and technical decision, the Court of Appeal calls into question the
legitimacy of traditional land dispute processes holding that the Courts are the
only bodies that have “lawful jurisdiction and power to make a
determination that binds everyone.”
THE
CASE
This
was an Appeal against the dismissal of an application for an interlocutory
injunction. The injunctive relief sought pertained to profits arising from the
use of custom land (hereinafter called the Natinae land). The Appellant had
instituted proceedings in the Island Court in 1997 to dispute ownership of the
Natinae land. Application was made to the Supreme Court for an account of
moneys received by the Respondent on behalf of the custom owners, and for
continuation of injunctive relief until the resolution of the ownership issue.
The
primary Judge substantially upheld the contentions of the defendant (Respondent)
that he was the custom owner of the Natinae land. The case was unusual in that
the evidence put before the primary Judge by the defendant raised factual and
legal arguments as to why the claim for an account of moneys received by him
would inevitably fail. In the result, the primary Judge concluded that custom
ownership had been determined, and on this basis, dismissed the
Appellant’s claim for a continuation of injunctive relief.
THE
ISSUE ON
APPEAL
The
primary issue on appeal was whether or not the custom ownership claims of the
Appellants had been finally determined against
them.
THE
APPELLANTS’ (PLAINTIFFS’)
ARGUMENT
In
support of the claim for the injunction, the Appellants asserted before the
primary Judge that they were the custom owners of the disputed Natinae land;
that there was a long running dispute with the Respondent as to the custom
ownership of the Natinae land; and since 1982 the Respondent had received the
lease payments for the disputed land and had paid none of it to the Appellants.
In 1997 the Appellants instituted proceedings in the Island Court to have the
dispute over custom ownership of the Natinae land determined, and that claim
remained unresolved. Lastly the Appellants contended that the Island Court was
the only body with the jurisdiction and authority to make a binding
determination of custom ownership, and until it did so the Natinae land remained
land over which custom ownership was in
dispute.
THE
RESPONDENT’S (DEFENDANT’S)
ARGUMENT
The
Respondent argued that the ownership of the Natinae land had been decided, and
that he was the custom owner of the land. His case before the primary Judge
included the
following:
In
or about 1981 a committee (The Utalamba Committee) was established to look into
land matters in Santo. It was a representative group for the area, and was to
work in close association with the Department of Lands. The Respondent
contended that the committee had jurisdiction to determine customary ownership
of land on Santo. The Respondent was nominated to be a representative of custom
owners on that committee, and the nomination was formalized by a written
declaration by the then Minister of Lands and Natural Resources. A copy of the
declaration was produced, and it appears in that declaration that the Minister
nominated him pursuant to s.6(2) of the
Land
Reform
Regulations.
The declaration expressly allowed 30 days to dispute the
nominations.
Prior
to 1982 the Respondent lodged a claim in an “Area Land Court” or an
“Area Land Committee”. The Committee declared him to be custom
owner of the Natinae land, and this decision was conveyed to an officer of the
Department of Lands. There being no appeal, The Minister declared him to be the
custom owner of the Natinae
land.
In
March, 1988, a council of chiefs met and confirmed that the Respondent was a
custom owner of the Natinae land. The decision of the council of chiefs did not
name the Appellant as a custom
owner.
In
February, 1988, the Department of Lands and Natural Resources wrote to the
Respondent and other custom owners of the Natinae land informing them that there
had been settlement of the land dispute concerning titles including the Natinae
land, and that the Santo Land Council, which had been receiving rents, would pay
out the moneys in hand to be shared equally between the addressees. The
Appellant was not named in that correspondence as a party entitled to share in
the
rents.
THE
APPELLATE COURT
DECISION
The
Appeal Court began by agreeing with the primary Judge that the Minister’s
Declaration made in 1982 could not have been made pursuant to s.6 of the Land
Reform Regulations Act, 1980 (which was in the same terms as s. 6 of the Land
Reform Act [CAP 123]), because this section refers to alienated land. However,
the Appeal Court did not agree with the conclusion of the primary Judge that the
appointment of the Respondent to represent the custom owners was actually made
pursuant to s.8 of the
Land
Reform
Regulations.
The Appeal Court added that in any event, s.8 did not empower the Minister to
issue a certificate, or take any other action, which would have the effect of
deciding the dispute as to custom
ownership.
The
Appeal Court then proceeded to review the Lease Titles for the Natinae Land.
The two Lease Titles showed that the registered lessor was the Santo Land
Council. The Santo Land Council was established by the Minister pursuant to Land
Reform (Santo Land Council) Order No. 125 of 1981, and was empowered to manage
the land. The power to enter into leases of the land specifically required a
recital in each lease that the Council was acting on behalf of the Government or
the custom owner, as the case may be. The Natinae leases contained recitals to
the effect that the leases were entered into on behalf of the custom owners.
The
Appeal Court found it to be significant that the leases remained registered in
the name of Santo Land Council as lessor, even though Order No. 125 of 1981 was
revoked in 1988 by Order No. 31 which provided that all property owned by the
Santo Land Council was now vested in the Government of the Republic of Vanuatu.
The effect of this order, stated the Appeal Court, was that the Minister
directly resumed general management and control of the land under s.8 of the
Land Reform Act [CAP 123], and thereby held the land as land where ownership is
disputed.
As
to this point, the Appeal Court concluded that the register of Lease Titles gave
no support to the claim by the Respondent that the ownership dispute had been
resolved.
The
Appeal Court then moved on to consider the Utulamba Committee and its associated
“Area Land Court”, and the council of chiefs which met in 1988. The
Appeal Court rejected the argument that these bodies had lawful authority to
make a determination binding on all claimants. Rather, the court concluded that
the Constitution “envisages that disputes between citizens, or between a
citizen and the Government, including disputes over custom ownership of land,
will be finally resolved through the Courts, if they cannot be settled by
agreement between each and every party who claims a competing
interest.”
The
Appeal Court based this last conclusion Articles 73-78 of the Constitution
interpreting these articles as guiding provisions as to the appropriate
customary institution or procedures for resolving disputes about custom
ownership. This led to consideration of Article 52 of the Constitution which
provides for the establishment of village or island courts with jurisdiction
over customary matters; and of the Island Courts Act [CAP 167]. The Court
stated that “it is clear from the Constitution and from the Island Courts
Act that unless everyone who at any time claims an interest in the land is
prepared to accept a settlement, the only bodies that have lawful jurisdiction
and power to make a determination that binds everyone are the Courts, in the
first instance the local Island Court, and if there is an appeal, the Supreme
Court”.
The
Appeal Court concluded that the processes and decisions that had occurred in the
past did not finally determine the customary ownership. Until the claim was
determined “according to law” the custom ownership dispute
continued.
DISCUSSION
The
Appeal Court rejected every argument that the Respondent put forward to support
his claim for customary ownership of the Natinae land. The Court looked for
technical defects in the Minister’s declaration. The Court reviewed the
Lease records to dispel the notion that the Respondent was a lessor. Lastly, the
Appeal Court held that the chief’s council and “Area Land
Court” lacked the lawful authority to make a determination binding on all
claimants.
The
effect of this decision was to reject the customary process as a legitimate
dispute process by which to determine the ownership of custom land. It appears
that the Appeal Court rejected the notion of customary ownership where there was
no official State involvement, in the form registration (such as a lessor), or
in a legal
decision.
However,
even if the Court rejects the custom process, the Court cannot reject customary
rules, as the Constitution has provided for their inclusion and consideration.
The Appeal Court did consider Article 74 which provides that “the rules of
custom shall form the basis of ownership and use of land in the Republic”;
but there is also Article 45 which directs the judiciary “to resolve
proceedings according to law”, and
law
according to Article 93, includes custom. The result of the Appeal Court ruling
is that even if land ownership must be decided according to customary rules,
these customary rules must be adjudicated within the State legal
system.
Although
the Constitution requires the Government to arrange for appropriate customary
institutions or procedures to resolve disputes concerning the ownership of land
(Articles 73-78), there is no implied or express concomitant requirement that
disputes
must
be decided by the State institutions in order to be binding. However, the
effect of this Court of Appeal decision could call into question the legitimacy
of any custom land dispute decision that has not had the blessing of the formal
court
system.
The
case has been considered. In
Kalomtak
Wiwi Family
v.
Minister
of Lands,
[2004] VUSC 47 aff’d [2005] VUCA 29, the lower Court considered the fact
that the Claimants had been declared custom owners by council members of the
village. The Court relied on the
Touru,
and stated
that: “It is the Courts who are the only bodies recognized under the
Constitution with powers to determine custom ownership.” The Court of
Appeal applied the principle again in cases with very similar facts to the
Touru
decision
in
Livo v.
Boetara
Trust,
[2002] VUCA
10; and in
Cevuard
v.
Samsen,
[2003] VUCA
10.
In
the aforementioned cases the matter of
ownership
was before the Courts. However, where ownership has not been at issue, the
Court has not applied the
Touru
decision. In
Warput
v.
Santo
Veneers,
[2004] VUCA 18, the Appellant sought damages from the Respondent forestry
company for harvesting timber on his land. The Appellant based his claim as
custom owner of the land on the declaration of the area Council of Chiefs. In
ruling in favor of the land owner, the Appeal Court said that
Touru
was not applicable because the case was not about ownership. The Appellant had
possession and use of the land and this was sufficient for finding the forestry
company liable for damages for their trespass, and unlawful harvesting of trees
on the custom owner’s property. Thus, the Court distinguished between
legal ownership which would have required the application of
Touru,
and a form of custom ownership which was duly recognized by the Court.
Perhaps
it is because of the change of land uses that has led to the
Touru
decision.
Jowitt[1]
contends that most of the time custom deals with land disputes in Vanuatu.
However, she goes on to state that “custom is increasingly failing to
resolve issues as uses of land are changing”, and “[p]eople are no
longer as willing to accept the legitimacy of custom settlements when
settlements are not in their favor.” In light of these comments, the
Court of Appeal decision in
Touru
may be seen as the Court’s response to changing land uses in an
increasingly commercial environment which is demanding a greater degree of legal
certainty.
[1] Jowitt, A. ‘Indigenous Land Grievances, Customary Land Disputes and Restorative Justice’, [2004] JSPL 8(2) http://www.paclii.org/journals/fJSPL/vol08no2/8.shtml accessed 10/10/2006.