OPINION: How Land Bill Benefits Itaukei

The following is an opinion by lawyer and politician Roko Tupou Draunidalo. The views expressed are her own.
22 Aug 2021 09:53
OPINION: How Land Bill Benefits Itaukei
Roko Tupou Draunidalo

The political debate over Bill 17 of 2021 was a storm in a teacup whipped up by divisive politicians who wanted far more damage inflicted by their posturing.

As acknowledged by Opposition lawyers in the big law firms, native land ownership and control is not an issue.

By law, native land can only be owned by na­tive land and controlled by the iTaukei Land Trust Board (iTLTB) as trustee of native lands. No one else. And no native land has been lost since the iTLTB was established.

In that control and until very recently, the law stated that for any dealing with native land, the iTLTB as trustee of all native lands had to give its Consent. Section 12 of the Act starts with the subheading “12. Consent of Board required to any dealings with lease.” The first part of that section 12 of the Act then sets out that except for a very limited circumstance- “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.”

Experience in court

In practice, when I was regularly in the High Court at Lautoka as Counsel ten years ago- that section felled quite a few plans, dreams and business transactions because the land­owning units and investors had not obtained the Board’s consent before embarking on var­ious dealings. The High Court would strike down dealings that had not complied with the requirements of section 12.

And when lawyers received instructions for disputes involving native land, checking for compliance with section 12 was usually the first pit stop. On the other side of the equa­tion, landowning units that wanted develop­ment on their lands by their own members or other Fijians from various communities complained of the ‘red tape’ in obtaining con­sents from the Board for very many things- in order to not fall foul of section 12.

Red tape

That ‘red tape’ meant too many delays for too many ordinary Fijians (landowning units and potential lessees). As we read from big developers’ lawyers two weeks ago, the big developers with money for accountants and lawyers do not suffer similar red tape. They get their consents from the Board within a week. That’s what those developers pay their lawyers and accountants to do for them- re­move the obstructions brought about by red tape.

And it was erroneous for Opponents of Bill 17/2021 to say that removing the requirement of section 12 for mortgages, charges and caveats simply required an administrative function within the Board.

What they were saying was that in spite of the clear words of the law in section 12, the Board could make and follow policy to thwart the clear requirements of the law. As set out above, such policy and conduct was not going to survive any level of scrutiny in the courts of law that have a history of throwing plans, dreams and dealings with native land out the door where section 12 was not compiled with.

As the lawyers for Mr Nawaikula reportedly put to the Court of Disputed Returns recent­ly, the executive arm of government can only change policy not law. Policies have to oper­ate within and under the law. Not outside of it. So the removal of any administrative burden put on the Board and the removal of unnecessary red tape put on ordinary Fijians by section 12 could only be removed by law. Not by any internal policy of the Board to get outside of the law in section 12.

Two governments for iTaukeis

The loudest complaints about section 12 however is that there was no consultation with native landowners. This complaint ignores the fact that every iTaukei in this country has two governments, our separate iTaukei government under the Ministry of iTaukei Affairs and our national govern­ment. We are the privileged caste of Fijians because there is a separate and entire gov­ernment machinery to deal with iTaukei issues only- iTLTB, NLC, Villages, Tikina councils, Provincial councils.

From my days at law practice with land­owning units over ten years ago, complaints about administrative burden at iTLTB and red tape for ordinary Fijians were swirling around then. And as we all know, complaints swirl around in our communal settings for some time until the right number or the enlightened chief make enough of a fuss to force the issue through, Combination of Fiji­an style and Fijian time. It is also well known that iTLTB poundage has dropped over the last twenty years and it will be a miracle to find a landowning unit willing to pay more poundage for the iTLTB to hire more person­nel to clear administrative burden and red tape.

Because landowning units have been say­ing for some time that they are happy with the poundage dropping, not one wants it in­creased.

These are issues that are regularly dis­cussed by villagers, landowning units, chiefs and officials at the Bose ni Koro with Turani (village), Bose ni Tikina (district), Bose ni Yasana (province) and these issues have a direct line to the prime minister who by con­vention is usually the minister responsible for the Ministry of iTaukei Affairs (the sepa­rate iTaukei government).

PM’s competing interests

So the prime minister, any prime minister not just the incumbent, has to listen to the competing interests between various land­owning units in the separate districts and provinces under the iTaukei government and put that together with the national interests then come up with government policies and laws to address them all as fairly as possible.

Different landowning units will have dif­ferent needs, the ones with big resort de­velopments will not be as concerned with administrative burden and red tape as oth­er landowning units that want their lands leased more efficiently by their own members and ordinary Fijians from every community in Fiji. The landowning units that don’t lease out too much land for commercial farming or developments will be least concerned of the three.

And like every other representative govern­ment in Fiji from history, the current govern­ment will be concerned about economic pro­gress and especially iTaukei economic power and progress as we are the majority of voters and own 90 per cent of all lands which is no way matched by economic power and eco­nomic progress.

Something that Fijians of the other com­munities will also be very concerned about too for the sake of peaceful national progress and development.

Accordingly, the current government has come up with policies targeting the iTaukei in particular- this is not a secret. It is an­nounced at annual government Budget time- a revolving $10 million facility to assist land­owning units to subdivide and develop their own lands.

Opposition critics complain that only about 10 per cent of that has been used. It may have to do with proper scrutiny of propos­als and supervision of progress unlike what occurred with the NBF collapse. Accessing the funds will require ‘know how’ which the brains in the opposition could devote them­selves to – for development of iTaukei lands instead of divisive and inconsequential pur­suits.

The incumbent government has also broadcast various agricultural assistance in finance (FDB), and kind (Ministry of Ag­riculture). Targeting the smaller end of the investment market, majority of which (if we are interested) is the iTaukei community.

Bill 17 for economic progress

Bill 17 was just another initiative for the government to address ordinary Fijians with economic opportunity, progress and power. And the community in the biggest need of such opportunity, progress and empower­ment is the iTaukei community. The new law just assists smaller investors to access finance for growth without the red tape of consents for mortgage, charge and caveats.

Again, opposition lawyers in the big private firms agree that ownership of iTaukei land is not an issue. iTaukei land will be owned by the iTaukei forever and ever. No iTaukei land has ever been alienated except lawfully in an exchange with the State as had occurred in Momi. And the SDL government did that for economic progress and empowerment too of the landowning units. Just as the current government is attempting with their various policies.

The economic progress and empowerment of ordinary all Fijians, majority of which is the iTaukei who are most in need of such as­sistance. A recent article in a national news­paper by Suva academics attacked the new laws for prioritising profit over protection of native lands. How wrong they were.

Native lands forever protected

Native lands are forever protected in law and otherwise. And leases are for a deter­mined time only. Leases are not forever. They have a conclusion date. And iTLTB and land­owner consents are still required for the is­sue and renewal of leases. No lease can be issued unless those consents are given.

But after those consents are given and leas­es issued- what is wrong with taking away red tape and the need for consents for mort­gages, charges and caveats to assist ordinary Fijians with their investment and growth requirements within the term of their lease?

Concerns about profit on native land is very shallow, it ignores CSR, slavery (inden­ture system) and every major agricultural and tourism economic development in this country- 99 per cent on native land. Previous governments have emphasised national and communal economic development, progress and empowerment while the current swathe of policies appear to target individual eco­nomic progress and empowerment through agriculture and/or land subdivision and de­velopment.

Not entirely new either, SDL had Fi­jian Holdings Limited for the middleclass iTaukei. SVT and tourism developments in­cluding Denarau was at the communal, clan levels. Ratu Mara and the Alliance govern­ment went about laying the foundations for later growth- institutions, infrastructure including water, roads, hospitals, EFL and education. These evolving policies are a nat­ural part of representative government and governance.

Landowning units to be active

Another opposition concern is that iTLTB may lose their database for mortgages, charg­es and caveats on native lands and this is concerning to landowners. As a friend (sen­ior counsel) cheekily said to the suggestion ‘That is assuming that the iTLTB already has such a database’ but irreverence aside, there is nothing to stop landowning units from keeping their own records. The new laws ac­tually prompts landowning units to be more active and participatory in the governance of their lands.

Whereas under the old laws, the iTLTB will deal with applications and approvals of con­sents without letting landowning units know, the new laws should prompt landowning units to send a member (no lawyer required, up to Form 4 or 6 only) regularly to the public office of the Registrar of Titles to obtain the details of the mortgages, charges and caveats on leases issued out of their lands.

They can keep their own database in a note­book, telephone, computer or IT cloud and they may even assist iTLTB with their own database. No angst or anxiety necessary.

Another critic

One more critic of the new laws said that the tinkering with iTLTB laws do not address larger empowerment issues to do with up­skilling, value adding, local and foreign mar­kets. Rome was not built in a day, policies are evolving and with less political divisiveness and drama over such simple amendments (but big progress) from the conservative side of politics- the evolutionary cycle will grind on even more efficiently.

As is plain to see however from this recent legislative amendment- the new laws are just the ordinary evolution of laws for a repre­sentative government to address competing interests in the separate iTaukei government (Ministry of iTaukei Affairs) and national government in order that economic develop­ment and progress continue for the benefit of the greatest number possible. Majority of whom are iTaukei.

The conservative side of politics in the Op­position however will continue their divisive, dramatic and chaotic style of politics to scare the iTaukei about the sky falling and native land being alienated because they need emo­tions at high pitch to generate votes for them­selves to cover their various policy vacuums. In their thinking, only their side of politics can deal with native land and if they’re in op­position, the whole country must stand still until they are returned to government to deal with native land.

One chief has written to the authorities to exempt his lands from the new laws. By that I take it that by not being bound by national laws- the chief and his people will be repay­ing the national government all national de­velopments in their districts, schools, hospi­tals and other government assistance? Doubt it.

And as 2018 has shown, a large number of voters – about 28 per cent of the national vote or about 180,000 voters fell off from the large numbers that voted for the government in 2014 and refused to vote in 2018 completely. They refused to vote instead for the opposi­tion and their friends. That is because that segment of the electorate did not see an alter­native government in that group. They saw the divisive, chaotic, want to be arrested all the time for the most useless things and they saw the policy vacuums.

Those voters will also remember that under their leadership of Fiji, the biggest number (from 1996 to 2006) moved away from the ru­ral areas (leaving fertile land idle) to squatter settlements in the urban areas with the as­sociated social and economic problems that brings with them.

Because there were policy vacuums to ad­dress iTaukei empowerment and entrepre­neurship in the rural areas using native lands.

So it is unfortunate for those other non gov­ernment parties that the iTaukei who want economic progress and empowerment disa­gree with them on the world standing still to await their return to power for any develop­ment with native land laws and native land.

Majority of iTaukeis educated

The majority of the iTaukei today is educat­ed, enlightened, want to make investments and profit from the land. They are not the iTaukei of the 1930s and 1940s when these laws were first enacted.

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