Wednesday, March 28, 2007

Fijians & Mining Ownership

Fiji Indigenous People and Mining IV - 28-Mar-2007

Secretary – Fiji Indigenous Ownership Rights Association

This week we continue on our way to discovery. In 2005 at a public discussion at Suva’s Epworth House on the then draft Qoliqoli and Lands Claims Tribunal legislations many indigenous Fijians present asked some very pertinent questions. One provocative query was - “When did or who gave our qoliqoli seabed ownership to the state?” Another question that surfaced - “Was the qoliqoli owners consulted?”
The Vatukoula issue compels us to raise a similar question, this time a more specific one - How come “the state has propriety control of all minerals or materials in the subsoil” as penned under Fiji’s Mining Act Cap.146. After the current dust of uncertainty is settled those questions still need to be answered.
These and other similar unanswered trans-generational questions, fuel the justification of support for future coups. Let us not delude ourselves about that fact. It is true we have the Ministry of Fijian Affairs and its arms out there to cater for the protection of the Fijian people.
However, it has legally paralysed the indigenous people and as a result they are successfully keeping the Fijian grassroots at the bottom of the social, economical and education ladder. We have dwelt at length on the reason why the “clean up” exercise should be more than a cosmetic surface excuse but must reach out beyond the curtain of time.
The past holds the key to the solution of our current dilemma. Coup villains Rabuka and Speight provided justification for their acts with the proclamation of ‘Fiji for the Fijians’. The Qarase Government’s Reservation to Native Land under Clause 8 Crown Lands Act (Cap. 132) emerged nearer to the actual source as landownership. The Cabinet reasoned as follows:
“Native Fijian people had been agitating for a long time for the return of their God-given land. The delays and de-service on those regards by previous governments had caused Native Fijians’ situation culminating in roadblocks, school closures, taking the law into their own hands and part of the many reasons for the coup-de’tat…”
We now know that the exercise is just a transfer of ownership of Crown Lands from one government institution to another quasi-Fijian real estate agency. We refer to the Native Land Trust Board. The Fiji Indigenous Ownership Rights Association’s submission to the Sector Standing Committee on Economic Services on the Real Estate Agents Bill 2006 on the 14 July 2006 suggested that the NLTB’s role has evolved from a trust institution into a powerful real estate agent. For the purpose of elaboration on this particular issue, we submitted as follows:

Section 2, Interpretation

An “officer’’, in relation to a licensee company, means every director, manager, or secretary of the company who, on behalf of and in the name of the company, carries on the company’s business as a real estate agent, and includes:
(a) any person, however designated, who is responsible for the management of the company or institution such as the Native Land Trust Board, that deals in “land’’ as defined hereunder as including estates and interests, whether freehold or chattel, in real property.

Meaning of “real estate agent”

3. (1) For the purposes of this Act, every person shall be deemed to be a real estate agent who acts, or who holds himself or herself out to the public as ready to act, for reward as an agent in respect of the sale or other disposition of land or the purchase or other acquisition of land, or in respect of the leasing or letting of land, whether or not that person carries on any other business.
(2) Notwithstanding subsection (1), no person shall be deemed to be a real estate agent for the purposes of this Act by reason only of the fact that:
(a) being a legal practitioner, the person acts, in the course of business as the legal practitioner, as agent in respect of the sale, purchase or other disposition of land, the acquisition of land or the leasing or letting of land, unless the person is remunerated for so acting by commission in addition to, or instead of, professional charges as a legal practitioner;
(b) the person sells or offers to sell any land by auction;
(c) the person enters into a transaction or series of transactions pursuant to a permit granted to the person by the Board under section 30.

Administration of trust account in certain cases

65. (1) this section applies in any case where the Board is satisfied that a real estate agent:
(a)is, owing to physical or mental disability, unable properly to administer a trust account; or
(b) has died; or
(c) has been adjudicated a bankrupt; or
(d) has had his or her licence revoked; or
(e) has been suspended from carrying on the business of a real estate agent; or
(f) has ceased to carry on the business of a real estate agent and has neglected to wind up his or her trust account after reasonable notice has been given by the Board requiring such winding up.
The attitude of the NLTB as to the situation of the Fijian landowners is aptly described in subsection (a) above. This institution has made landowners incapable of developing their lands to the point that they have become dependent on government handouts. The NLTB now justifies itself to hold in trust the Fijian peoples’ lands into perpetuity as a real estate agent under the pretext of “for the benefit of the Fijian people”. The current NLTB system and its management ethos have psychologically paralysed indigenous landowners.
It is time the NLTB re-examine its actual role and redirect its energies to being a trusteeship rather than a speculative real estate institution. Deputy General Manager (Operations) of NLTB aptly said “taken in its strictest interpretation, NLTB’s role is limited to the administration of land for the benefit of the Fijian landowners….” (Presentation to the Fiji Hotel Association Hospitality Forum by October,)

State Acquisition a terra nullius application

The dispossessed state of Fijian grassroots landowners continues to remain unchanged even after the so-called pro-indigenous coups (1987 & 2000) and successive Fijian-led governments.
The indigenes are still zipped up in the same colonially constructed straitjacket with their mineral, qoliqoli seabed and other natural resources locked up to boost the national coffers while they crowd the nation’s prison, squatter settlements and urban streets. Unless the Interim Government takes the initiative and reconciles the Fijian peoples’ dilemma as set out above there is no hope of hoping that future coups are avoidable.
At a 2005 Lautoka consultation sitting on the draft Qoliqoli and Indigenous Land Claims Tribunal legislations the author asked the panel of state lawyers as to how the qoliqoli seabed ownership rights came to belong to the state?
One of the panellists replied that the law was adopted from England. The author reminded the panellist that the 1874 Deed of Cession recognised that Fijians communally possessed the real property ownership rights of the whole of the Fiji island group. This right under the old common law extended to rights over all materials beneath the surface and all the air space above it.
This can be evidenced in the 1908 Mining Ordinance, which provides ‘Fiji landowners with the right to compensation for exploration of mineral wealth beneath their land.
This real property rights was altered in 1934 to cater for the discovery of gold in the Tavua basin and later Vatukoula.

Continued next week — The need to ‘clean up’ the past so as to have a peaceful present and lay a prosperous basis for our future.


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