Introduction

1The general theme of this Conference is “Oscillation”. The term “oscillate” is defined by the Shorter Oxford English Dictionary, 1985, p518, as meaning “swing to and fro; vacillate, vary between extremes”. So oscillation is swinging back and forth, varying between extremes, rather like a pendulum. There are undoubtedly swings and variations happening with regard to custom land in Vanuatu. But is doubtful if they can all be correctly described as oscillations in the sense of movements “back and forth, to and fro”. One of the important changes that is occurring with regard to custom land I think could I think be accurately described as oscillation, because they are changes that have been swinging back and forth from two extremes: these are the changes that have happened, and are still happening, with regard to the bodies which are authorized to determine disputes about rights of ownership of custom land. But there are two other important changes which are occurring with regard to custom land, changes in the entitlement or rights to ownership of custom land, and changes in the practice of occupation of custom land near and around urban areas. I think it is clear that the changes in the practice of occupation of customary land cannot properly be regarded as oscillation, but should more properly be regarded as transition. Whether these can rightly be described as oscillations I am not so sure, and perhaps transition would be a better term to use to describe them.
The purpose of this paper is therefore to explore the three main respects in which custom land has been undergoing change: (1) The bodies which are authorized to determine rights of ownership of custom land; (2) the effect of dealings in land upon ownership of custom land; (3) occupation of custom land.

Changes in the Bodies authorized to Determine Ownership of Custom Land

2With regard to the changes that have been made in respect of the bodies that have been authorized to determine ownership of customary land, I believe that this could be described as oscillation, because the changes can be described as swinging to and frohave been quite significant and also quite sudden.

Native Courts and Joint Court, 1906-1980

3While the New Hebrides was administered as a condominium by the British and French Governments, 1906- 1980, disputes about ownership of custom land were dealt with by courts – Native Courts at first instance, composed of a British or French District Agent advised by two indigenous assessors, and on appeal by the Joint Court, composed of a Spanish President, a British judge and a French judge.

Island Courts and Supreme Court, 1980-2001

4After Vanuatu acquired independence from the condominium powers of Britain and France in 1980, ownership of custom land continued to be determined by courts:- Island Courts, which were authorized to be appointed by the Chief Justice under the Island Courts Act 1983, and on appeal, the Supreme Court, comprising the Chief Justice and Associate Justices. Island courts, which were copied from the Local Courts which had been established in the Solomon Islands by the Local Courts Ordinance 1942, were to comprise “not less than three justices knowledgeable in custom for each island court at least one of whom shall be a custom chief residing within the territorial jurisdiction of the court”; s 3(1) Island Courts Act. These Island Courts “shall administer the customary law prevailing within the territorial jurisdiction of the court so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order”: s17 Island Courts Act. The purpose of these Island Courts was obviously to enable ownership of custom land to be determined by the custom of the area of the island where the land was situated, and to allow the diversity of custom to operate with regard to ownership of custom land. Appeals from Island Courts on matters relating to land were authorized by s22(1)(a) Island Courts Act to be made to the Supreme Court, but the Supreme Court, although a symbol of the unity of the State of Vanuatu, applied the diverse customs of Vanuatu with regard to land ownership. It did not attempt in any way to unify these customs, and applied the customs as it found them in the area of the land in dispute.

Village, Custom Area and Island Land Tribunals, 2001-2013

5From 2001 -2013 disputes about ownership of customary land were determined by land tribunals. In the first instance, a dispute as to ownership of land was determined by a village land tribunal, composed of 3 persons knowledgeable about the custom of the area where the land in dispute was situated, selected by the principal chief of the village within the boundaries of which the land in dispute was wholly located. If the land was situated within the boundaries of more than one village, then a joint village land tribunal would be composed of 3 persons from each village knowledgeable about the custom of the area where the land was situated who were selected by the principal chief of each of the villages within which the land was situated. If a disputant did not accept the decision of a village land tribunal or a joint village land tribunal, an appeal could be filed with the council of chiefs of the custom area in which the land was situated, and that council of chiefs could appoint a custom area land tribunal comprising 3 persons knowledgeable about the custom of the area where the land was situated. If a disputant did not accept the decision of a custom area land tribunal, an appeal could be filed with the Island Council of Chiefs of the island, and the Island Council of Chiefs could appoint an Island Land Tribunal comprising 5 persons, all of whom were to be knowledgeable about the custom of the area where the land in dispute was located. The Supreme Court was empowered to supervise the processes of the land tribunals, and if any person took part in proceedings of a land tribunal when that person was not qualified to do so, or if the procedures adopted by an Island Land Tribunal were not those authorized by the Act, then, the Supreme Court could intervene to review the processes of the Island Land Tribunal. Under this system also decisions about ownership of custom land were based upon the individual customs of the particular custom area in which the land was situated.

Nakamals and Custom Area Land Tribunals, 2013-2015

6In 2013, the Custom Land Management Act 2013 was enacted. This provides that if there is a dispute about land, it should be reported to the head of the nakamal in which the land is situated, and the head of the nakamal is then to convene a meeting of the nakamal to determine the dispute. A nakamal is defined as meaning:“a customary institution that operates as the seat of governance for a particular area. Members of a nakamal include all men, women and children who come under the governance jurisdiction of that nakamal”. Decisions of a nakamal are required to be made “by concensus of the members of the nakamal in accordance with the custom of the area in which the nakamal is situated”, and are to be recorded in writing with a sketch plan of the land of decision making that operates at present. There is an opportunity for this to happen, but whether it will in fact happen, remains to be seen. Time alone will tell.

The Effect of Land Dealings upon Ownership of Custom Land

7In this section, we will consider what changes are occurring with regard to custom land that was sold or given away by custom owners to people who were not their descendants.

Land Dealings Pre 1980

8Land dealings It is clear that at least in certain areas of Vanuatu before 1980 there were transactions whereby owners of custom owners transferred their rights to custom land to people who were not their descendants, ie people who in English terms would be regarded as successors in title, rather than as descendants, and these transactions were accepted by the Supreme Court and by various Island Courts as valid and effective in custom.. There is a decision of the Supreme Court and several decisions of Island Courts which have upheld gifts inter vivos of custom land, and also sales and purchases of custom land, by the owners of custom land to people who were not their descendants. On these occasions such dealings in custom land have been accepted by the courts without demur as effective in custom:

1) Gifts inter vivos as rewards for services rendered:

9Meltenoven v Meltesaen [2008] VUIC 14. In this case land was given as a reward for contributions to a pig killing ceremony. “Counter claimant…This party’s basis of claim is founded on patrilineal lineage of his ancestor…Meltesingsing… It is not disputed that Meltevaratine paramount chief … had allocated land to Meltesingsing in return for his contribution to the staging of a magi [pig killing] festival. The land of Mabu must rest in the hands of Meltesingsing and his descendants.”

10Malas v Tarimiala [2010] VUICB 6 In this case land was given as a reward for bravery and fighting. “Ponatoka Land …which is located in North Efate in Mele Bay…

11Counter Claimant 1 Family Tarimiala…bases his claim on 3. Compensation for blood lost through fighting…Around 1845 Tarimiala with his son Kaalteneaki went to Tenukutapu, Kalteneaki married Leilaango and Tarimiala went back to his home village of Tamarsertano. Kalteneaki and Leilaango begat Lakeleolangai, who was a strong man for fighting in all the villages of Efate. When he came through all the fighting and came to the village of Imere Tenuku Chief Gours knew that Lakeleolanai was living with the men of Imere or Mele Village. In 1891 news came to the village that the people of Parksi and Margasi were starting to come nearer, and Chief Gours he told Lakeleolanai and his friends to go and fight with the people of Parkasi and Margasi, kill them all dead or run them out of the area, and Lakelaeolangi and his friends went out to fight them. The enemy did not use custom weapons to fight, but used muskets, and they shot Lakeololangi dead. His friends continued fighting and they ran out the invaders back to Lelepa island, and told them not to come back to the mainland again. When the friends of Lakeololangi returned they wanted to carry the body of Lakeololangi back but it was too heavy, because he was a giant of a man, so they cut off a leg and carried it back through the dark bush to the sea, and then to the village of Imere Tenuku Tapu. When they reached the village, they went straight to the entrance of the nakamal of Chief Gours. The Chief brought Lakeololangi’s small boy to the front of all the people and the friends of Lakeololangi, who was called Sauwo, and they held high the leg of Lakeololangi and Sauwo passed through underneath it. Chief Gours said: “You have brought this leg and have walked through the dark bush with it, with the blood falling down, until you reached here, so this land is the land of the Family Tarimiala. “ After that they buried the leg. ……Declarations of Court….2. Family Tarimiala is the custom owner of the land, called Nausara.”

2) Sales and purchases of custom land

Lale and Sipora v Silas [1980-88] 1 Van LR 221

12This case contains two separate examples of sales of customary land by custom owners which were considered by the Supreme Court to transfer ownership of customary land to the purchasers: Cooke CJ, p. 222: “Nicholson Silas [who claimed ownership of Peterevat land] admitted that land within Peterevat was sold by him to Paul, Italy, William, Eric Moses and Semino and that he accepted such sales… I am of the opinion that he is the correct owner of the land at Peterevat…and that he will honour the sales of land within Peterevat made only to Paul, Moses, William, Italy, and Semino…” Cooke CJ, p223: “I considered the submission of Chief Willie, on behalf of his son, Willie, who was adopted by Chief Bembi, to the land in the north east corner of Peterevat. He stated that …his father sold it to Chief Bembi and many people paid for the purchase of the said piece of land. He said that his son who was adopted by Chief Bembi should get the land….I was satisfied that this piece of land was in fact obtained by his ancestors and sold later to Chief Bembi, and later given to his adopted son. I therefore consider that this portion of land belongs to the adopted son of Chief Bembi (Willieson)….”

Family Mermer v August Taliban [2003] VUICB 2

13One of the facts upon which the Counter-Claimant , August Taliban, relied as evidence that he was the custom owner of the land called Fali, was that his father, Pierre Massing Wakon, who died on 26 September 1970, had during his lifetime sold many pieces of that land: “Taliban said when he was spending his life with Pierre he noticed the customs which other men made to Pierre that made him think that Pierre Massing Wakon, was the true owner of Fali. One other reason why he said this was that he saw Pierre sell many pieces of the land to people and to the Catholic Mission which is now located at Fali. There were 14 pieces of land which Pierre Massing Wokon sold as follows:

141. Poli Marmar he sold to the Catholic Mission, 2. Loli Taen he sold to Albert Baip, 3. Lone Bulbul he sold to Yalfang, 4. Lone Tinisam he sold to Tete Baip, 5. Poli Raholiman he sold to Dominique Sulol, 6. Lone Pato he sold to Tugon Jean, 7. Lone Jibak he sold to Noel Mermer, 8. Poli Tubu Nalili he sold to the Catholic Mission, 9. Poli Woeke Wo he sold to Bae Charlie, 10. Lonre Ho he sold to Lolten Alexis, 11. Loli Polwa he sold to Worwor Lino, 12. Ran Wap he sold to George, 13. Poli Peta Genegere he sold to Guleg Jose, 14. Poli weke Salsa; he sold to T Bak Lulu Stanislas”.

Family Tantan Amos v Family Maily Amos (Worwor) [2004] VUICB 5

15“The Ambrym Island Court sat down, 18-20 August 2004, to hear a land dispute between Family Tantan Amos and Family Maily Worwor relating to land called Sulol [close to Craig Cove, West Ambrym]….The spokesman of the Family Worwor stated also that there were reports which showed that some old people from earlier time had been selling land of Sulol, and none of these people were from the Family Tantan. There was old Willie Uleng and old man Kaonmal. The spokesman for the Worow Family said that there was one piece of land in the Sulol area which was bought by the Catholic Mission, and it holds a lease title to this day. The Spokesman said that there were three old people who sold land at different times: there was old Meleum Takon, who sold 25 pieces of land in 1896, and later old Galine who sold land in the year 1898, and the last of the three ancestors was Mari who made sales in 1898. None of these people, said the spokesman of the Family Worwor, were from the Family Tantan”.

Awop Family v Lapenmal [2007] VUIC 2

16In this case the claimant and also some of the counter claimants brought evidence of earlier sales of land by their predecessors as evidence of their claims to ownership. Indeed so many of the claimants and counter-claimants were selling pieces of land that the court considered that such sales could not be regarded as reliable indications of ownership: “The land in dispute is situated at Rano mainland, north east of the island of Malekula… registered before this court as Amelprev… Elsiem Utissets appeared for the original claimant … led evidence that the land belonged to David Telvanu being the last survivor of the land of Amelprev and Tolsie is the only surviving bloodline of the land of Amelprev… To re-enforce his history he provided that dwellers of the area have long recognised her tribe as the customary owners of Amelprev. For such recognition certain local occupants such as Alick Nawinmal, Etienne and others have purchased parcels of land from… inside the area.

17But again this is another common transaction also undertaken by some of the parties in this context respectively. Almost all claimants to this case have sold land to other dwellers…

18Counter Claimant 4 Louis Ureleles representing Family Lolinmal…led evidence that…many local residents of Rano have purchased land from Louis Ureleles….It is accepted that local residents of Rano have purchased land from Louis Ureleles and others. However these documented deeds are no means exceptional. This is a common transaction also undertaken by other disputants of the land. Almost all claimants to this case have sold land to other dwellers. His ancestors could be selling land that does not belong to them. This point would apply to every other claimants involved in the sale of land.

19The widow Tolsie, 75 years old, verbally said that she is the only surviving daughter of David Telvanu…

Declaration

20In the light of the foregoing deliberations, it is hereby this day adjudged…
1.That Tolsie David and family be the custom owners of the land of Amelprev”.

Article 73 Constitution of Vanuatu

21In none of the above cases does it seem that any argument was raised to the court about the fact that the transferee was not a descendant of the custom owner, and the court does not seem to have adverted to the effect of Article 73 of the Constitution of Vanuatu which came into effect on 30 July 1980, and which provided: “All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants.” There have, however, been some occasions when an Island Court has adverted to this Article and has held that it means that a transfer of customary land to a person who is not a descendant of the descendant is contrary to Article 73 of the Constitution and therefore void:

22Tomoyan v Shem [2007] VUIC 1: “The land in dispute is situated….on the northern part of the island of Ambrym…registered as Behal… Makekon who had sold the land in contest is the last male line of the land of Behal. …After some years went by, Makekon got ill and then moved to Tainmal’s nasaraa at Fanla. He could not recover and so decided to seek further medical treatment at Port Vila. Prior to his departure he verbally made a customary will or promise before Tainmal and Natin Roromal. In his testament he declared that the duo take charge of his funeral rites towards his mother’s uncle. In doing so the executors will have customary rights over the land of Behal. And so upon Makekon’s death the agreed ceremonies were performed accordingly…[I]t is our consideration that such a custom process is typical of the territory and do occur during funeral ceremonies. However if there are male surviving lines of the land and its nasaras as pronounced by this court, then such promise or will cannot take effect…

23Article 73 of the 1980. Constitution stipulates that all land in the republic of Vanuatu belongs to the indigenous custom owners and their descendants. That provision applies across the board including alienated land respectively. … [I]n application of the law and custom the court is hesitant to grant this defendant’s claim as sought”.

24Arudare v Garae [2012] VUIC 5, p 6: “Robinson Tariala is disputing ownership of a plot of land at Lo claiming it to have been purchased by his ancestor Charlie Tariala in 1907 from Quak Vinat son of chief Boe Sasavi, customary owner of the land. He had entered into such a transaction after returning from Queensland, Australia. His primary intention for securing such piece of land was to build a church for purposes of spreading the gospel of Jesus Christ….Our finding is that there is sufficient evidence proving that there was a land transaction that had taken place in 1907 between Charlie Tariala and Quak Vinat owner of the land of Lo…The relevant articles of the Constitution regarding land ownership and use… Articles 73-75 have been taken into consideration. In custom, land cannot be transferred to another tribe or family. It makes no difference whether it was sold, leased or contracted through some other means of tenure. It will still be designated by law and custom and is returnable to the indigenous customary owners and their descendants. In principle, the land’s ownership would perpetually remain under the authority of the clan and its descendants for an indefinite end of time. In light of the foregoing facts, this party would only be granted a right to use the land in consideration of the land purchasing agreement”.

25So where does this leave us with regard to the rights of people who, or whose ancestors, acquired custom land, otherwise than by descent or inheritance from a custom owner? Does this mean that all the land which has been transferred in earlier times by custom owners as a result of gifts and sales and purchases is to able be taken back by the descendants of the custom owners who transferred the custom land. That seems to opan up a very unattractive vision of disputes and social disorder throughout the country.

26To avert this result, one approach to adopt would be the approach that was adopted by the Malvatumauri in its Custom Policy,1983, Article 2, section 12 :

27“Malvatumauri wishes to state that in times before people used to use their land for 1. Selling land for a woman.2 Paying a fine with land.3. Paying for the death ceremony of a man or family. 4 And before if a chief wanted some people of another chief to fight in a war in which he was involved, and some of those people were killed, and the first chief did not have enough pigs to compensate for their deaths, that chief could compensate for them by giving a piece of land. But the Malvatumauri wishes to make it clear that such practices must stop. But that does not mean that a person can go and take back the land that was given by these practices. But there are many other methods which can be used to compensate a man in custom in accordance with the different customs and cultures of each island. This policy means that now there is no need to use the earlier practices and they must stop”.

28Another approach, to the same effect, ie not to disturb past land dealings, would be to amend the Constitution to read “All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants and successors in custom”.

3) Changes in practice as regards occupation of custom land

29The above have all been examples of changes in the rules of custom relating to the ownership of land. There are also I believe some changes of practice as regards the occupation of custom land. Traditionally, ni-Vanuatu owned their land together and occupied it jointly in undivided shares. But now one can see a marked trend towards (1) occupation of custom land by people who ae not the custom owners, and (2) individualisation of occupation and use of custom land. These changes are occurring not everywhere, but only in, and near, the boundaries of larger urban areas, especially Port Vila and Luganville. In the rural areas of Vanuatu practices of occupation remain as they always have, but in the areas near urban areas, the peri-urban areas, it is possible to discern significant changes in patterns and practices of occcupation of custom land. Unfortunately these changes are not yet fully recorded or registered, so we cannot at this stage assess exactly what extent or percentage of custom land is affected by these changes.

Increasing occupation of custom land by non custom owners

30The ownership of customary land has not changed in recent years, but what has changed is the occupation of customary land. The occupation of custom land has changed and is changing, particularly in and near urban areas. In urban areas, and in the outskirts of urban areas, one finds that to an increasing extent the land is occupied, not by the custom owners of that land, but by indigenous persons who are not the custom owners of that land. The changing occupation takes several different forms:

Custom leasing of custom land by indigenous non-owners

31In peri-urban areas, there are many areas that are leased by indigenous people who are not owners, but who obtain the permission of owners to occupy some of the owners’ land. These are indigenous people who are wanting to live closer to urban areas than where their own land is located. Their desire to live close to urban areas may be because they are working in paid employment in the urban areas and they need to live close to that employment. Their wish to live near an urban area may be because their children are going to school or are undergoing training in the urban area, or because members of their family are requiring to undergo medical treatment in the urban area, or because they plan to drive vehicles, trucks and buses, that will transport people and produce to and from the urban areas. These indigenous people will be looking for small pieces of land on which they can build a house or shelter where they can live, and will seek permission from the custom owners or the chiefs of the area to occupy such small pieces of land. Other indigenous people wish to be close to the urban area because they plan to grow crops, such as lettuce and tomatoes, pawpaws, bananas and pineapple, kumala and yam, which they can sell at the markets in the urban area. These people will be looking to make an arrangement to occupy a larger piece of custom land reasonably close to the urban area to which their produce can be transported and sold.

Formal leasing of custom land by indigenous and non-indigenous non-owners

32Some leasing of custom land is undertaken formally by lessees who execute and register a formal lease. Some of these people may be people who are employed in the urban area, or are needing to be near the urban area for schooling or training or medical reasons, and are basically interested to obtain a piece of land sufficient for a residence. Others may be people who are planning to use the land for feeding animals, such as beef cattle and pigs, and so will require larger pieces of land.

Formal leasing of custom land by indigenous custom owners for individual occupation

33An increasing number of custom owners who own land near urban areas are entering into formal leases of a portion of that land nowadays, and the reason that they are giving for this is that, although they are custom owners, they wish to secure for themselves and their family a separate part of their jointly owned land. This is particularly sought after because there is no method of registering custom land. Obtaining a lease of land ensures that the boundaries are defined, and the interest of the lessee is registered and is indefeasible, and can be devised to one’s wife and children. The piece of land that is leased for this reason is likely to be larger than the piece of land that is custom leased by indigenous people for residential purposes, as described in the preceding section, because the person who is leasing it under custom has in mind the need to secure sufficient land for himself and his family both now and in the foreseeable future.

Squatting on custom land by indigenous non-owners without permission of custom owners

34In some areas, one finds that indigenous people have established themselves on custom land which they do not own, without any permission from the custom owners. So there is no question of leasing, formal or informal. The size of the piece of land that is squatted on by a non-owner without the permission of the non-owners is likely to be quite small, just sufficient for the squatter/occupier to place a small house or shelter on it, so as to provide a place for himself and his family. But if a number of these pieces of and are squatted on in this way a significant change in the nature of the occupation, and of the occupiers, will take place. Sometimes, as in the case of the Tongoa people who were occupying the land in the Destination area near the boundaries of Port Vila, the squatters may claim to be descendants from original owners and so entitled to own the land, although in that case, that claim was not upheld.

Increasing individualization of occupation of customary land

35As has been mentioned, custom leasing of land and formal leasing of land often results in the occupation of quite small areas of custom land, sufficient for a home or shelter for a man and his family. Formal leasing of custom land by a custom owner also results in the occupation of a fairly small defined area of land by just one custom owner and his family. In this way, occupation of custom land which had been joint and undivided, now becomes divided and individualized.This is a change of occupation of custom land which is occurring, especially in and near urban centres. If one walks around the larger urban centres, such as Port Vila and Luganville, in Vanuatu, one finds that ni-Vanuatu people are living as nuclear families on small pieces of land, either with or without the permission of the custom owners, as described above. One also can observe that custom owners themselves are often dividing off a piece of their custom land which they occupy and garden for their own purposes, and may indeed even acquire a formal lease of such land, also as discussed above All of these trends result in increasing individualisation of occupation of custom land which is very evident in many peri-urban areas. This is not the trend in rural areas, but in urban and peri-urban areas it is becoming very common.

Conclusion

36The purpose of this paper has been to demonstrate and describe the changes that have been made with regard to custom land in Vanuatu – the changes that have been made to the institutions which have the authority and the responsibility to determine rights of ownership to custom land; the changes that appear to have been made by the Constitution to the rules of custom recognizing dealings in customary land; and the changes that are presently occurring with regard to the occupation of customary land in and near the larger urban areas in the country.