Customary Land and Sea Tenure for Sustainable Development

Dr. Graham Baines

Environment Pacific

The idea of recognition and support of customary land and sea tenure as a basis for sustainable development is sound, not least because tenure is such an important expression of social relationships. However Pacific island countries have found it difficult to re-establish a form of traditional land tenure that is satisfactory in all ways. Some of the problems faced are listed. Examples of different approaches to the question of legal support for customary land are given. Even where customary land rights of ownership and access have been settled, there are difficulties in using legally supported customary ownership as a basis for economic development.

Through both colonial regimes, and despite official opposition, East Timorese have retained knowledge of traditional arrangements for the inheritance and allocation of land and of rights to the use of the resources of that land. These tenure arrangements, with associated local knowledge of natural resources and of biodiversity, together make up local resource management systems. Sea rights derive from coastal land rights. Where the communities concerned are land oriented, sea tenure may not be expressed as strongly as land tenure.

At the departure of colonial powers, all Pacific island countries made efforts to reclaim and restore their customary tenure systems. Times and circumstances have changed, however, and this has proved to be a difficult task.

It is important to sustain a customary base for land and sea areas, not least because tenure is such an important expression of social relationships. However, in Pacific island countries it has been difficult to re-establish an appropriate form of traditional land tenure, because:

· Customary land allocation (determined by inheritance, residence, marriage and other social associations) was never a fixed process. Decisions were based on certain principles, but there was a flexibility which meant that decisions could be made to fit changed circumstances.

· If customary land rights are to be given legal standing, then how are they to be described, and at what point in the evolution of local custom are the principles to be fixed?

· The tradition of passing on genealogies verbally to following generations is fading as the authority of knowledgeable elders has been weakened. Consequently, younger people are less well informed of their rights and obligations. This increases the level of disputation of land claims.

· Not all of the individuals living on a specific area of land are part of the group that collectively “owns” that land. However, their access to that land has been protected under custom and their customary rights may be at risk if the “owners” are given formal legal ownership.

· The saying “a little knowledge is a dangerous thing” applies. Some individuals have been skilful in using courts to present false genealogies that sound more persuasive than those of the true owners and, so, have been able to dispossess the latter.

· The current customary pattern of land distribution to some extent reflects the outcome of fighting which took place long ago. Descendants of the losers of past battles may be those who today have access to little or no land.

Pacific island countries have approached the question of legal support for customary land in different ways. In the Solomon Islands a simple approach is adopted under a Customary Land Boundaries Act, 1998. This provides for the registration of land boundaries and the name(s) of the tribes or clans that collectively “own” the land within the registered boundaries. The difficult task of agreeing on which individuals are members of the owner group is left to the concerned communities to decide. Disputes about who qualifies are common.

In Papua New Guinea the Incorporated Land Groups Act, 1974 does provide for identification of “landowners”. This is done through a process of “social mapping”. Fiji began registration of customary land about ninety years ago. The task took fifty years to complete. Indigenous Fijian land is administered by a Native Land Trust Board, and a special register is kept for indigenous Fijians, each listed under the clan into which the father was born.

Even where customary land rights of ownership and access have been settled, there are difficulties in using this legally supported group ownership as a basis for economic development. Land equity may be considerable, but financial institutions cannot secure that land against loans for development. A simpler path to economic returns from land, through leasing a portion of it, is also problematical. Even though a lease has a fixed time period, the presence of others on one’s ancestral land is sometimes perceived to be a form of “occupation” which could lead to loss of the land. Another difficult development issue is economic returns from timber cutting and from mineral resources on and under customary land. Who is to receive what? Inequitable distribution of benefits from customary land can be a serious threat to social stability and, so, to sustainable development.

The reasoning behind the idea of recognition and support of customary land and sea tenure as a basis for sustainable development is sound. There are useful lessons to be learned from attempts elsewhere, but the approach must be East Timorese, and must face issues such as the differing status of adat (customary law) and of particular groups in society in relation to customary rights, and of what is to become of individuals long settled on land to which they do not have an ancestral claim.