Program blong land law reform
Luk daon wan stetmen we mi putumaot long saed blong wok blong jenisim ol loa blong graon we i stap gohed naoia (sori, i stap long Inglis nomo).
Mi stap aot tede blong travel araon long Vanuatu blong mekem konsaltesen long ol niufala loa ia kasem nekis manis wantaem.
STATEMENT FROM THE MINISTRY OF LANDS (6/9/13)
Government to amend land laws to address the 20 resolutions of the National Land Summit of 2006
The Council of Ministers has given its support for making amendments to Vanuatu’s land laws to address the 20 resolutions of the National Land Summit of 2006. Council of Minister’s Decision 127 of 2013 has endorsed the land law reform package being proposed by the Minister of Lands as well as the holding of Provincial consultations and a National Land Law Summit on the 15th and 16th of October. It is planned that the Bills and accompanying regulations will be tabled during the November 2013 session of Parliament.
In 2006 a National Land Summit was held in Port Vila, following on from consultations held around the provinces. The summit was attended by many people including the Prime Minister and other Ministers, the Malvatumauri Council of Chiefs and other Chiefs, provincial delegates, representatives of women, young people and churches, and representatives of government departments. The Land Summit produced 20 resolutions designed to address problems with the current land laws in Vanuatu – the resolutions are attached as Annex 1. In general, these resolutions were structured around the following problems identified with the operation of current land law in Vanuatu:
•That there should be customary group, not individual, ownership of land;
•That the Minister’s power to manage land where there is a dispute should be removed and that disputing custom landowners must consent to all negotiation certificates, leases and any other major land dealings on their land;
•That there are problems in the identification of the correct custom landowning group;
•That land dealings should be more fair and that lease conditions and rental payments should be reviewed and that there should be proper notification processes before negotiation certificates and leases are issued;
•That there needs to be more awareness around land laws;
•That Strata Title should only apply to buildings and not to land;
•That environmental and social impacts need to be taken into account, and that proper physical planning and zoning must be undertaken prior to a lease being registered, and that public access to beaches and costal waters and resources as well as rivers and creeks must be maintained.
On 21 November 2006 the Council of Ministers supported the resolutions of the Land Law Summit with minor amendments (DESISON 138/2006: AOT KAM BLONG NASONAL LAND SAMIT 2006 & INTERIM TRENSISONAL STRATEJI, attached as Annex 2). The Council of Ministers decision stated that the Council agreed to:
1.Endorse the changes made to the 20 resolutions of the National Land Summit of 2006;
2.Endorse the interim transitional strategy to guide the process of land management and development of land until the resolutions of the Summit come into full force;
3.Endorse a Steering Committee to monitor the implementation of the outcomes from the National Land Summit of 2006. The members of the Steering Committee included representatives of the Ministries of Lands, Finance, Agriculture, Trade and Internal Affairs, and also of the Malvatumauri Council of Chiefs, the Vanuatu Cultural Centre, the Private Sector, the Department of Woman’s Affairs and a Youth Representative;
4.Commit itself to find support and funding to implement the resolutions from the National Land Summit as a top priority.
In particular the Council of Ministers resolved with respect to the power of the Minister of Lands:
1.To remove the power of the Minister to approve leases where land is still in dispute;
2.Ownership of land must be cleared before the Minister can approve any leases;
3.If there is a dispute over land which is used for public interest, the Minister may sign a lease on behalf of the custom owners.
These resolutions of the Council of Ministers have never been given effect in law. It is for this reason that the Ministry of Lands has initiated a project, over the last four months, to reform the current land laws of Vanuatu so as to comply with the resolutions of the National Land Summit, and the subsequent Council of Ministers decisions.
The current problem:
Recent statistics based on land data in Vanuatu for the period of 1980-2010 (Vanuatu National Leasing Profile: A Preliminary Analysis (Justice for the Poor Briefing Note, May 2012)) suggest that 9.5 per cent of the total land area of Vanuatu has been leased, with 13,815 registered leases being issued in the 30 years since independence. On the main island of Efate, statistics from the national leasing survey suggest that 69.5 per cent of urban Efate, and 43.6 per cent of rural Efate are under lease. This includes the leasing of 56.5 per cent of coastal Efate or 121.5 kilometres. Many of these leases were entered into without any consultation with custom landowning groups, and without any real benefits accruing to custom landowning groups. The problem is not development, but that development must be more beneficial to custom landowning groups, and that custom landowning groups must participate in deciding about that development.
Of the registered leases issued before 2010, 99 per cent of the land area that had been registered was located in rural areas, and 1 per cent in the urban areas of Port Vila and Luganville on publically held land.
National leasing data for Vanuatu suggests that subdividing land is a common practice. Of the 13,815 leases in Vanuatu until 2010, 5,420 are subdivisions and 78 per cent of these are for residential leases. While the majority of these subdivisions are located in the rural areas of the main commercial islands of Efate and Santo, speculative subdivisions have also been registered for outer islands such as Aore (with 243 registered subdivisions). Interest in the speculative land market continues to grow in spite of a resolution of the National Land Summit which called for a moratorium on subdivisions. Between 2006 and 2010 a further 1989 subdivisions were registered, of which the overwhelming majority were located in rural areas.
In the 30 years since independence, of the 6,803 rural leases that have been granted, 21.4 per cent – or 1,458 leases – were signed by the Minister as lessor. The Minster’s power of approval was originally intended only to be used with respect to land alienated prior to independence where the ownership of the land was disputed, thus the incidence of the use of the power to sign off on leases should be decreasing. Trend data suggests, however, that the use of the Ministerial power to sign off on rural leases has been increasing over time, in accordance with the increased interest in land speculation in Vanuatu. At its highest point in 2004, the Minister for Lands was signing off on just under 250 leases in rural areas on what was previously customary land. There was a decline in the use of the Ministerial power for a brief period of time after the Vanuatu Government declared a moratorium on the granting of leases by the Minister in response to the 2006 National Land Summit. However, since 2006 the use of the Ministerial power to approve leases over rural land has once again increased and at 2009 just less than 150 leases were granted by the Minister. These figures however, probably underestimate the level of leases granted by Ministerial power as statistics for approximately 29 per cent of the leases registered in Vanuatu do not name the Lessor. The problem is that many of these leases are signed off by the Minister without the knowledge or consent of custom landowner groups, and often without any due-process around planning permission and other legal and administrative requirements.
Another major problem that has arisen because of the problems with our land laws and land administration system, plus the improper application of these laws, is that our courts have become clogged up with land disputes. There were so many land cases in the courts in the year 2000 that the Chief Justice made the decision that the no more land cases would be dealt with by the judiciary, a decision which led to the establishment of Customary Land Tribunals in 2003. Even today, however, the State (the Government of Vanuatu) is at present defending itself against an enormous number of court claims against the Government because of its Constitutional function to approve all land dealings: as demonstrated by the graph in Annex 3, the number of litigation claims against the Ministry and Department of Lands is more than double or 3 times the amount of claims against all other Ministries and Departments combined.
The land law reform package:
This paper proposes that a new package of land laws be introduced into Parliament in its November session this year. These new laws have been designed to address the resolutions of the National Land Summit (2006) and will include:
•A new lease-making process which will involve major changes to the current powers of the Minister (in the Land Reform Act) so that the Minister cannot consent to any new rural lease, subdivision or change of lease type without the approval of a newly created Land Management Planning Committee (LMPC). Ministerial consent to transactions over land where there is a dispute will require the consent of the disputing parties. All urban land deals that do not involve a subdivision or change of lease type will be fast-tracked with the simple requirement that the Minister shall, on advice from the Director of Lands, consent to all transfers and mortgages of all leases over urban land;
•A Customary Land Management Act to replace the existing Customary Land Tribunal Act. This new Act allows for resolution of disputes by customary processes at the level of the nasara or nakamal. If the matters cannot be resolved at the nasara/nakamal level, the disputing parties can go to Mediation if they choose, or to an Area Land Tribunal;
•Measures to protect state land;
•Measures to enhance the role of the Malvatumari to be consulted over matters related to land.
With respect to the resolutions of the National Land Summit around the customary group ownership of land, under the new land laws:
•The definition of “custom landowner” will be changed to “custom landowning group” to reflect group ownership of land in Vanuatu;
•Under the new leasing process, all consents to leases, subdivisions or change of lease type will require that the custom landowning group must consent and that consent is free and prior-informed consent;
•Women and young people will have a right to express their view to the custom landowning group;
•If any of these consent provisions are not met, any member of the custom land owning group and any woman or young person has the right to lodge a complaint with the new office of the Land Commissioner.
With respect to the major problems in identifying the right custom landowning groups to negotiate land leasing with, the new laws propose that the Customary Land Tribunal Act be seriously revised and amended. The government has conducted three reviews of the Customary Land Tribunal Act. The new Customary Land Management Act is designed to address all the recommendations of these reviews. Under the new leasing process, customary land officers will be allocated help identify the customary land owning group in accordance with Part 3 or Part 4 and Part 5 of the Customary Land Management Act.
Under Part 3 of the new Customary Land Management Act, land disputes can be resolved in accordance with kastom. Customary lands officers will be present at a meeting of a nakamal or nasara. Decisions made by the customary landowning group must have the approval of three-quarters of its members and the details of a decision need to be recorded in writing. The written record must indicate who attended the meeting, when and where meeting/s occurred, the details of the decision and any interests in the land that any members or families have. A written record of the decision can then be filed with the Island Court (Land). This written record will create an overriding interest in land within the terms of section 17 of the Land Leases Act.
Under Parts 4 and 5 of the new Act, if the disputing parties cannot resolve the dispute in the nakamal, they may agree to resolve the dispute by mediation (Part 4) or to take the dispute to an Area Land Tribunal (Part 5). Customary lands officers will be based in every Province in Vanuatu and funding for these positions has already been allocated by the Ministerial Budget Committee (MBC) in the 2014 budget ceilings.
According to Article 79 of the Constitution, the Ministerial consent to a land transaction should not be given if it can be demonstrated that the transaction is prejudicial to the interest of a custom owner or custom owners or the community in whose locality the land is situated. As such, where land is under dispute, the Minister can only act if each party to the dispute consents. Where this involves a new lease, all of the members of each disputing group must consent as indicated by the signing of their representatives on the instrument. Any transactions approved by the Minister that do not follow the process outlined in the Act will be void in law.
The new leasing process contained in the new land laws will mean that every lease agreement will:
•Be in Bislama (applications for negotiation certificates, etc, must also be in Bislama);
•Involve all members of the landowning group;
•Involve customary lands officers reading out in Bislama the negotiation certificate application and lease to the customary landowner group;
•Require custom landowners to sign to indicate that they have seen the certificate of valuation prior to the lease being signed, to ensure that the valuations of all leases are fair and reasonable.
With respect to the powers of the Minister, the new land laws will stipulate that the custom landowner groups must consent to:
•any negotiation certificate;
•any new leases being created;
•any change in lease type (land use);
•any subdivision of land.
The new laws will require that all leases, changes of lease type or rural subdivisions must be approved by the newly formed Land Management Planning Committee. The Land Management Planning Committee will be Chaired and presided over by a person who is independent of government, has legal expertise on land law in Vanuatu, and who has been appointed by the Minister for Lands in consultation with the Malvatumari. Other members of the Land Management Planning Committee will be the Director of Lands, the Director of the Department of Environment, the Director of the Vanuatu Cultural Centre, a Senior Planner (appointed by the Minister of Internal Affairs), and a Senior Shefa Provincial Planner. If the Land Management Planning Committee recommends the approval of a lease, change of lease type or subdivision, then the Minister cannot unreasonably withhold his consent.
Another key element to these new land laws is the position of Land Ombudsman. The role of the Land Ombudsman is to investigate complaints from custom landowners (on limited grounds) about their consent to a lease. More specifically, any customary owner, or any other Ni-Vanuatu person who is not satisfied that the proper process has been followed in obtaining the consent of the customary landowner group for the registration of a new lease, or a subdivision or change of lease type for an existing lease, has the right to lodge a complaint with the Land Ombudsman.
The new laws have been drafted through a process that has involved consultation with a High Level Working Group. This High Level Working Group has included the Director General of Lands and the Director General of Justice, the CEO of the Malvatumauri, the Valuer General, representatives from the business community and the Chamber of Commerce, a local real estate agent, private lawyers and legal representatives from the State Law Office and representatives of women and youth organisations.
Consultations will also be held on these new land laws across all Provinces in Vanuatu. This consultation process will be followed by a National Land Law Summit that will bring together Members of Parliament, the Malvatumauri, the business community and representatives from the Provinces, Departmental staff and non-government organisations. Separate consultations will be held with the Malvatumauri and with the business community in Port Vila and Santo, and also with all the major banks. There will also be a full-day briefing of Members of Parliament before the laws are introduced.
The legislative drafting project including the consultation is being funded by the Mama Graon Program, funded primarily by AusAID and NZAID. Assistance in-kind is also being provided by the Vanuatu Cultural Centre.
Timetable for consultations:
10th September 2013 – VNPF conference room, EFATE – 9:00am – 3:00pm
12th September 2013 – Sarede Village, South SANTO – 2:00pm – 4:00pm
13th September 2013 – Jif Nakamal, Luganville, SANTO – 9:00am – 3:00pm
14th September 2013 – Natamata, Malo, MALO – 9:00am – 12:00pm
14th September 2013 – Vunatari, Malo, MALO – 2:00pm – 5:00pm
16th September 2013 – Nimbaur, Lakatoro, MALAKULA – 9:00am – 3:00pm
17th September 2013 – Akhamb Island, MALAKULA – 2:00pm – 4:00pm
18th September 2013 – Farun, MALAKULA – 9:00am -3:00pm
19th September 2013 – Lamap, MALAKULA – 9:00am – 2:00pm
21st September 2013 – Abatuntora, PENTECOST – 9:00am – 3:00pm
22nd September 2013 – Lovonda, AMBAE – 2:00pm – 5:00pm
23rd September 2013 – Navonda, AMBAE – 8:00am – 10:00am
24th September 2013 – Hog Harbour, SANTO – 9:00am – 3:00pm
25th September 2013 – Sola, VANUA LAVA – 2:00pm – 5:00pm
26th September 2013 – Ngerenuman, MOTA LAVA – 9:00am – 3:00pm
30th September 2013 – Tafea Kaljoral Senta, Lenakel, TANNA – 9:00am – 3:00pm
1st October 2013 – Lakaio, North TANNA – 9:00am – 3:00pm
2nd October 2013 – Lowipeng, Whitesands, EAST TANNA – 9:00am – 3:00pm
8th October – Rovo Bay, EPI – 9:00am – 3:00pm