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A view of Bill 17 of 2021

Earlier this month, the government, in the context of its annual budget process, introduced a Bill (“Bill 17”) to amend the iTaukei Land Trust Act (TLTA) – the “iTaukei Land Trust (Budget Amendment) Act, 2021”. *

It has met with strong protest from many chiefs, the Methodist Church and some members of parliament, including SODELPA, the main opposition party. A petition by thousands of people to withdraw the Bill (which is expected to be debated in Parliament today), has been rejected by the Speaker.

The ‘Bill’ seeks to amend section 12 of the TLTB Act by the creation of a new subsection (1A) which removes the requirement of obtaining the consent of the TLTB Board for any mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law.

Section 12(1) of the TLTB states:

“Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void”.

Under section 4 of TLTB Act, the control of all Taukei land is vested in the TLTB Board and all such land must be administered by the Board “for the benefit of the Taukei owners”.

THE ORIGINS OF TLTB

Ratu Sir Lala Sukuna is regarded as the architect of the Native Land Trust Board now renamed the iTaukei Land Trust Board. Before the creation of the TLTB, the bulk of indigenous land was owned by mataqali (clans) who individually negotiated the terms of land leases with those who farmed it. As a result, there were often variations and lack of uniformity in the terms and conditions of some leases. The majority of tenants at the time were Indo Fijian cane farmers.

In 1933, Ratu Sukuna out of a desire to address the competing interests of native Fijians and Indians over the issue of native land told the Council of Chiefs: “We regard the Indian desire for more permanent tenancy as a natural and legitimate consequence of an agricultural community settling in any country. But how was this desire to be reconciled with the need to protect the interests of present and future native landowners?”

The idea of a central body to regulate and manage indigenous or Taukei land was thus conceived, and the NLTB proposed as the vehicle for best achieving the twin aims of making more land accessible, mainly for sugarcane production, while ensuring landowner interests were properly managed.

It took Ratu Sukuna several years to personally persuade various mataqali scattered throughout Fiji to accept the scheme which he took to almost every village and landowning unit. He pleaded with the people and their chiefs to surrender forever the control of their land, and entrust its administration to a central authority, promising that it would always act in their interest.

The process of obtaining a consensus to establish a statutory trust to manage indigenous land was only possible by the painstaking consultations by Ratu Sukuna with landowners.

Eventually, following a lengthy and vigorous debate, the Council of Chiefs approved the scheme as did the Legislative Council. The Native Land Trust Act was described by the Governor Sir Phillip Mitchell as “one of the greatest acts of faith and trust in colonial history.” In this period, Fiji had a population of about 210,518 of whom roughly 100,000 were Fijians, and 90,000 Indians.

DUTY TO CONSULT

There is little evidence that Taukei landowners have been consulted at all or meaningfully about the proposed changes to Taukei land law. This has fuelled wide opposition to Bill 17.

Generally in making new laws, the government does not need to consult anyone. But it should be noted that under section 11(1) of the Native Affairs Act 1944, it must through the Minister for Native Affairs, consult the Native Affairs Board in matters affecting land. So while the Native Land Trust Act may not make specific reference of the need to consult on land matters, the consultation requirement is under the iTaukei Affairs Act. The Minister may not consult if the matter is secret or urgent. (section 11(1) of the iTaukei Affairs Act).

Fiji’s previous Constitutions (1970, 1990, and 1997) made it very difficult to change Taukei land laws without their consent.Consultation with stakeholders and the people generally in the law-making process is a prerequisite of participatory democracy. It does not constitute an interference with the mandate of an elected government as some may have suggested.

Consultation forms a vital part of a constitutional democracy. It enables rationality and legality in the formulation of public policy and laws. More importantly, in a country such as Fiji where there are deep concerns and suspicions over Taukei land going back over a century, it helps to quell the fears of landowners that they will not meet the same fate that has happened to indigenous peoples elsewhere.

International Labour Organization (ILO) Convention 169 (Indigenous and Tribal Peoples Convention, 1989) to which Fiji became a party in March 1998, recognizes and protects the right of indigenous and tribal people to be consulted over matters concerning their land.

It may be that the TLTB management was consulted and that they apparently support the Bill.

However, the legal powers of the Board of TLTB are vested in the Trustees appointed under section 3 of the TLT Act, not its management. We have not been told whether the Board was consulted.

BILL 17 OF 21

The proposed amendment to section 12 of the Act subtlety changes the nature of the ownership of Taukei land. While views may differ, I believe that the reality is that any charge, including a mortgage, takes away some degree of control of the land from the landowner.

The new subsection 1A says that despite what is contained in subsection (1) (the need for consent), consent of the Board is not required for mortgages, charges, caveats etcetera. The new subsection 12(3) states that consent will only be refused where there has been a breach of any lease condition (such as non-payment of rent) or the application for any dealing in the land does not follow the law.

In other words, any lessee of TLTB land can transfer or sell their interest to someone else and TLTB has no choice but approve the transaction so long as the lessee is compliant. The amendment takes away the “absolute discretion” of TLTB in section 12 of the Act.

It has the practical effect of weakening the absolute discretion of the TLTB Board in granting or withholding consent for mortgages and sub-leases, transfers and the like which is guaranteed in section 12, and ties the Board’s hands.

So even if TLTB has a problem with a potential new lessee or sub-lessee and prefers to not approve any assignment, the law now says so long as the lessee has not breached the lease, the Board has no choice and cannot withhold consent. Whether intended or not, TLTB’s rights as a landlord are diminished by the proposed amendment.

I believe this is a significant change which weakens the TLTB’s control and oversight over indigenous land. I don’t think the explanation for these changes is convincing.

How exactly will the removal of the need for TLTB’s prior consent to mortgage have the effect of increasing revenue to landowners? Money that will change hands by virtue of mortgages, charges and other encumbrances will not go to the landowners but instead to the tenant.

In my view, it fails to consider the consequential impact of this on TLTB as the statutory trustee for landowners and on other laws like the Property Law Act and the Agricultural Landlord & Tenant Act.Claims that the removal of administrative matters (which may include consent to lease or mortgage) do not affect the rights of landowners and would increase the long term market value of Taukei land are questionable. How would the removal of a minor administrative process increase long term market value?

CONCLUSIONS

The proposed changes in Bill 17 of 2021 might allow for a marginally faster turnaround time in conveyance transactions for some people, but they dilute the oversight powers of the TLTB who are the trustees and custodians of Taukei land.

I believe this offends the spirit and purpose of the Act as originally drafted. A lot of care and thought went into drafting the original legislation. Each of the different parts are mutually reinforcing and were deliberately designed to address the concerns of the indigenous people at the time that the TLTB would carefully look after their interests.

The deep concerns and reservations that many indigenous Fijians feel about Bill 17 should not be ignored. Those concerns are real and linked in part to their indigeneity, experience of colonial rule and the assurances that were given to the indigenous when they agreed to surrendering control over their lands to the NLTB in the early part of the last century.

To dismiss criticisms of the Bill as the mere ranting of bush lawyers and urban elites is to downplay the genuine anxieties of landowners. The views of indigenous landowners and their chiefs, carry great weight and must be considered.

Focus on the apparent benefits that might be gained from the removal of consent fees and streamlining “bureaucratic” processes, betray a lack of sensitivity and understanding of how indigenous Fijians feel about their land and cultural heritage.

If government felt that aspects of TLTB consent procedure needed streamlining, it would have been easy enough to have them ironed out administratively.To an indigenous Fijian or Taukei, land is not so much a commercial proposition but something like a family heirloom passed from generation to generation. The present generation do not own it in the strictest legal sense, but are merely temporary custodians, practising good husbandry for the future of their people.

Fiji’s history of ethnic tensions should remind us that there is much to be gained from mutual respect and understanding of each other’s different viewpoints.

Our collective future as a nation requires that we respect different viewpoints and accord its first settlers due respect. Enduring change will come about through building consensus, not by shutting off dissenting opinions. That serves merely to promote discord and anger.

It is regrettable that efforts to share views on Bill 17 have been met with public shaming and intimidation.

Participatory law making requires that debate on Bill 17 take place in an atmosphere of calm and reason.

Ordering people to the police station to grill them on their views of Bill 17 is certainly not in the spirit of respect for human rights, freedom and the rule of law, and serves little purpose.

Addressing the Council of Chiefs in 1936 on the subject of native land, Ratu Sukuna said, “We the leaders must take guard on two points, restrain the hasty and inspire the weak.”

* From 1 March, 2011, all references in Fiji laws to the word ‘native’ were replaced with the word ‘iTaukei’.

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