ANALYSIS

OF THE INDIGENOUS PROVISIONS IN THE REGIMES CONSTITUTION OF 2013

SECTION Preamble

TEXT
WE, THE PEOPLE OF FIJI,

COMMENTS
Firstly, the Preamble fails to acknowledge the arrival of the ancestors of the iTaukei people in discovering our beautiful islands (Fiji). Secondly, it fails to establish the elements of modus occupandi - the iTaukei people were the first inhabitants of the Fiji Islands. Thirdly, the Preamble removes the fact that iTaukei people own the Fiji Islands under the doctrine of terra nullius. The Fiji Islands belonged to no one when their ancestors first discovered and named it. Fourthly, the preamble fails to record Cession and the history preceding this momentus event in our history. Fifthly, there is no recognition of the GCC as the first national State Government which had territorial sovereignty. The GCC having sovereignty had the right of a State to exercise over its own territory and ceded the dominion of the Fiji Islands (land territory, territorial waters, air space, its continental shelf and adjacent areas) to Her Majesty of Great Britain under the Deed of Cession on 10th October, 1874. Sixthly, there is no link to the history of colonization, independence, becoming a republic and the events that gave birth to the draft Constitution of the Republic of Fiji 2013. Practically, Section 3 of the Fijian Affairs Act (CAP 120) establishes the GCC as a semi-parliamentary council for traditional leaders to discuss and resolve through consensus proposals to be submitted to the Governor General in implementing the aspirations of the iTaukei people. The disappearance of the GCC in the imposed Fiji Constitution of the Republic of Fiji 2013 removes the unique direct parliamentary capacity, representation and consultation ability of traditional leaders with the Head of State. The purpose of this link symbolizes the relationship between the GCC (traditional leaders) and the Crown (Head of State). The British Monarch being the Tui Viti per installation in 1902, 1911 and 1937 remains the highest tribal chief of the Fiji Islands. Fiji's status as a Republic only represented severance from the Queen as Head of State at government level but that does not give the Minister for Fijian Affairs exclusive regulatory powers to make decisions on behalf of the iTaukei people in collaboration with the interest of the State. This has to be consultative based on the arrangement as set out in Clauses 4 and 7 of the Deed of Cession 1874. The Minister by regulation decides the composition of the

RECOGNISING the indigenous people or the iTaukei, their ownership of iTaukei lands, their unique culture, customs, traditions and language;

RECOGNISING the indigenous people or the Rotuman from the island of Rotuma, their ownership of Rotuman lands, their unique culture, customs, traditions and language;

RECOGNISING the descendants of the indentured labourers from British India and the Pacific Islands, their culture, customs, traditions and language; and

RECOGNISING the descendants of the immigrants and settlers to Fiji, their culture, customs, traditions and language,

DECLARE that we are all Fijians united by common and equal citizenry;.

Section Preamble

Text

Comments
Fijian Affairs Board in consultation with the GCC and Provincial Councils. The GCC in one of its landmark achievements based on Clauses 4 and 7 of the Deed of Cession, strategically implemented an indigenous affirmative development policy which saw the establishment of the Fijian Holdings Limited (FHL), Yasana Holdings Limited (YHL) and other diversified investments at Fiji TV etc. The FHL was specifically created to be the vehicle in which the iTaukei people could accelerate into the commercial sector of the economy. On the other hand, YHL allowed the amalgamation of the 14 Provincial Councils into a corporate body pursuant to Section 8 of the Fijian Affairs Act (CAP 120) to raise loans, provide security and generate revenues for the Councils. The aim of this integration concept was to enable the decentralization of commercial development to the Provincial stratas. The arrangement guaranteed the issuing of bond certificates as lien to assist development companies at Yasana and Tikina levels in securing loans from financial institutions. These Companies in return bought shares at FHL as investments and FAB from the dividends earned on return per investment from FHL created a Fijian Trust Fund to further faciitate the autonomy of the GCC. Secondly, the FAB designed a provincial development scheme in partnership with the Yasana and Tikina Councils to support the underlying integrated commercial development model by funding community projects to benefit the villages. The policy intent of this iTaukei model of development and investment was to communally unite the iTaukei people under the leadership of their chiefs, traditional institutions and fundamentally to eradicate poverty considering the low achievements and slow development of the iTaukei people in education, business etc. Despite the benefits of the communal voting system that ensured iTaukei political dominance in Parliament the iTaukei community had no chance to affect national economic policies because the economy was singly supported by the Sugar Industry that was dominated by the Indians. The iTaukei community only contributed to the economy by making land available through ALTA and in return benefited in lease rentals. This model of development provided the necessary balance to improve the standards of the iTaukei people in par with the wealth attained by Indian population without affecting the gradual deepening of democracy. However, this model of development had been heavily attacked by Indian political parties after independence, labeling it as a vessel that imposed the system of racial discrimination.

SECTION Preamble

TEXT

COMMENTS
The 2006 coup became an opportunity for political critics to displace the model. This saw the abolishment of the GCC, Senate and the communal voting system, now culminated in the adoption of the Fiji Constitution of the Republic of Fiji 2013. The reforms now reflected in the new (imposed) Constitution has empowered the State to divide and rule over iTaukei people by disintegrating the leadership of the chiefs in their Vanua government structure through the use of development techniques. Since the inception of the Peoples Charter for Change, Peace and Progress in 2008, the Regime has practiced a bottle neck system through its Divisional and Provincial service delivery machinery to direct development only to the respective chiefs and Vanua that support its mandate. This targeted approach is intended to break the customary link of all iTaukei people from the leadership of their chiefs and consolidate them under the executive authority of the State. Divide and Rule. The Regime has propagated the myth that imposing such reforms on iTaukei customary institutions will resolve racism and end the coup culture. However, this and all the new systems for governing and design contained within the imposed Constitution of the Republic of Fiji 2013 aspires solely to achieve domination by a few powerful people over the indigenous people and spectacular neo-colonialism under the guise of the afore-mentioned high sounding concepts. The GCC must be recognized under the Constitution as a body that governs the rights, institutions, values, information and resources of the indigenous population independently from the State. This should be based on the Separate Administration Model but must be fully deinstitutionalized from the legislation that gives the State powers to control it. The absence of the above facts threatens the divine rights, institutions , cultural mores and values of the indigenous population. Any form of recognition must be aligned to the spirit of the United Nations Declaration for the Rights of Indigenous People and the ILO Convention 169.

SECTION
Section 28 (1)

TEXT
The ownership of all iTaukei land shall remain with the customary owners of that land and iTaukei land shall not be permanently alienated, whether by sale, grant, transfer or exchange, except to the State in accordance with section 27. (2) Any iTaukei land acquired by the State for a public purpose after the commencement of this Constitution under section 27 or under any written law shall revert to the customary owners if the land is no longer required by the State. (3) The ownership of all Rotuman land shall remain with the customary owners of that land and Rotuman land shall not be permanently alienated, whether by sale, grant, transfer or exchange, except to the State in accordance with section 27. (4) Any Rotuman land acquired by the State for a public purpose after the commencement of this Constitution under section 27 or under any written law shall revert to the customary owners if the land is no longer required by the State. (5) The ownership of all Banaban land shall remain with the customary owners of that land and Banaban land shall not be permanently alienated, whether by sale, grant, transfer or exchange, except to the State in accordance with section 27. (6) Any Banaban land acquired by the State for a public purpose after the commencement of this Constitution under section 27 or under any written law shall revert to the customary owners if the land is no longer required by the State

COMMENTS
iTaukei land protection is already entrenched under the Native Land Act (CAP 133) and Native Land Trust Act (CAP 134). The rules and exception of alienation is specified in the Native Land Trust Act (CAP 134). However, the control of native land under the Native Land Trust Act (CAP 134) is not with the customary owners, it vests in the Native Land Trust Board. The nomination by the GCC to the Board has been revoked and the chiefs do not appoint Provincial Council Chairs nor do they have the privilege to nominate members through the Provincial Councils to the Fijian Affairs Board and Native Land Trust Board. They no longer have any form of representation to influence policy making in regards to land being a perpetual inheritance although customary land owners have access to take legal proceedings for the protection of their communal rights to customary land. Proprietary rights remain with the Crown although the Court may decide that traditional leaders have a duty to represent the interest of their tribal organization and communal units as it was held in the Narawa v. NLTB case. The NLTB, NLC and FAB are all control agencies of the State. In view of the Regimes Land Use Decree 2010 which establishes a Land Bank with its functions seemingly entrenched under Section 27 of the new Constitution, Native Land will be exploited by the States interest for economic development. Land is the greatest asset of the economy and customary land make up 88% of land in Fiji. The creation of the Land Bank was deliberately engineered to remove the bureaucracy of the land tenure system under NLTB which according to the Regime, threatens investor confidence (an indicator for economic growth). Considering, the intentions in Section 27 and 28 of the new imposed Constitution it is evident that the States economic interest will always override the protective role of the NLTB. Therefore the State through the imposed Constitution of the Republic of Fiji 2013 becomes a threat to the iTaukei people. These can only be solved if the NLTB, NLC and FAB are deinstitutionalized from the State and integrated into a separate quasi- government structure that allows customary owners of land to be independently and fairly represented.

SECTION
Section 29 (1)

TEXT
29.(1) All ownership of land, and all rights and interests in land, including land tenancies and leases, that existed immediately before the commencement of this Constitution, shall continue to exist under this Constitution.

COMMENTS
The interest of tenants is secure and is enshrined in the NLTA, ALTA and other legislations. This Section claims to address tenancy security which sensationalized land as a political draw card after independence. ALTA was specifically designed to counter this argument, by enabling NLTB to use land for economic purposes and in return earn lease rentals for customary land owners. NLTB is now re-directed to earn money from land (economically driven) which means that it will now focus on renewal of leases even without the need for land owning units traditional consent and to ensure that no native land is idle. On the contrary, NLTB has decided to equally distribute land rentals based on the western principle of fairness and transparency. This has affected the socio-economic status of the tribal organization in its attendance to traditional obligations and has weakened the traditional leadership hierarchy of communal units by making iTaukei people more submissive to the State leadership rather than to their Traditional leaders. These literally and deliberately tear down the traditional protocols within the tribal organization which embodies the culture, customs, traditions and language . Something that the Preamble of the imposed Constitution of the Republic of Fiji 2013 claims to recognize. This Section fails to address the mechanism that attends to defaulting land rental payments, rental review based on the commercial market value, better premiums on development initiatives and a balance between lease terms and rental rates. It also fails to address the risk of environmental damage to land where chemicals and usage have reduced land fertility particularly the effects of sugar cane cultivation on native land, and looking to the future, the effects of mining on native land.

(2) All land lessees and tenants have the right to not have their lease or tenancy agreements terminated other than in accordance with their lease or tenancy agreements, and any amendment to any law governing lease or tenancy agreements shall not adversely affect any existing lease or tenancy agreements.

(3) All land that existed as freehold land immediately before the commencement of this Constitution shall remain as freehold land, unless it is sold or is acquired by the State for a public purpose under section 27.

SECTION
Section 30 (1)

TEXT
All minerals in or under any land or water, are owned by the State, provided however, that the owners of any particular land (whether customary or freehold), or of any particular registered customary fishing rights shall be entitled to receive a fair share of royalties or other money paid to the State in respect of the grant by the State of rights to extract minerals from that land or the seabed in the area of those fishing rights.

COMMENTS
This has been entrenched in Section 3 of the Mining Act [Cap 146] and further cemented by the ruling of the Kanakana and Others v State [2010] FJHC 563; HBC116.1999S (22 December 2010) which held that all native titles had been extinguished at Cession. This decision is not consistent with Clauses 4 and 7 of the Deed of Cession which guarantees protection of resources and chiefly titles. However, Despatches 69 and 71 by Lord Kimberly which contained the wishes of Her Majesty Queen Victoria in 1881 provided an exception to crown proprietorship in common law. The two Despatches advised that land and qoliqoli were to be administered by native customs and laws. However, Governor William Devoux in 1882 ignored the advice by the House of Lords and acted in defiance to this policy instruction. This was only made known by a GCC initiative that sanctioned a working committee in 1978 at its meeting at Tubou, Lakeba, Lau to compile a report on the status of customary fishing rights. The Report on Customary Fishing Rights 1979 was submitted to the Governor-General who then authorized the FAB to design policies to implement the recommendations of the Committee. The proposed land claims tribunal and qoliqoli bill in 2006 was a move towards the enactment of legislations to resolve the sensitive issues that were highlighted in the Report on Customary Fishing Rights 1979. This move triggered opposition and the military in 2006 executed a coup supposedly to prevent proprietary rights of land, qoliqoli and minerals from reverting to the customary land owners. The military commodore proclaimed this to be racist and claimed that because the Bill threatened public interest, national security and the sovereignty of the State they carried out the coup. Now, the State through the imposed Constitution of the Republic of Fiji 2013 attempts to resolve these concerns by promising the iTaukei people a fair share of royalties from the mineral industry it controls. However, the benefits promised in Section 30 (2) is subject to the regulatory powers of the Minister of Lands who through the Ministry of Fijian Affairs, Ministry of Provincial Development and the Divisional Commissioners would set up Trusts for customary owners to manage premium payments, rentals, royalties, compensation bonds and other benefits. This is evident in the Nawailevu Bauxite Exploration and Exploitation Project where native land has been alienated to the Land Bank.

(2) A written law may determine the framework for calculating fair shares under subsection (1), taking into account all relevant factors, including the following (a) any benefits that the owners received or may receive as a result of mineral exploration or exploitation; (b) the risk of environmental damage; (c) any legal obligation of the State to contribute to a fund to meet the cost of preventing, repairing or compensating for any environmental damage; (d) the cost to the State of administering exploration or exploitation rights; and (e) the appropriate contribution to the general revenue of the State to be made by any person granted exploration or exploitation rights.

SECTION
Section 30 (1)

TEXT

COMMENTS
The native land on which the bauxite is found belongs to the customary land owners, the minerals (bauxite) belongs to the State, the Land Bank belongs to the State and the Land Bank on behalf of the State controls the land in which the bauxite has been extracted. The Land owners have complained to NLTB beseeching them to protect their native land but they have been told that the land has been alienated to the State for development purposes through the Land Bank. Now, as the customary land owners appeal for their fair share of royalties and other monies paid to the State in respect of the grant by the State , for Rights to extract minerals, they have been told that they cannot claim these royalties as this money isnow to be kept under the Trust. The appointed trustees include the Divisional Commissioner, Provincial Administrator and the representative of the Land Use Unit who have full authority to manage and make disbursement for the interest of the Trust. The interests of the customary land owners are not protected, nor are their so called benefits fully theirs. Native land alienated as prescribed by Section 27 of the imposed Constitution of the Republic of Fiji 2013 is not secure under the Land bank , and it does not empower the NLTB to repossess native land from the Land Bank if the interest of the customary land owners are exploited. In addition, all land designated under the Land Use Decree 2010 is said to be free of all encumbrances, and shall not be the subject of any dispute in any court, tribunal, commission or before any other person or body exercising a judicial function. This is the biggest disadvantage that Section 30 secretly entrenches. This encumbrance can only be sorted if the common law presumption is revoked and proprietary ownership of all minerals in or under any land or water reverts to customary owners of land by proper enacted legislations.

OTHER OBSERVATIONS
GCC no longer appoints the President and nominees to the Senate. There is no framework in the imposed Constitution of the Republic of Fiji 2013 that will enable the State to be financially independent (not to borrow from other nations). In addition, the new imposed Constitution lacks the credibility to sanction a national consensus. There are too many conditions imposed by the impoconstution that are non-negotiable. The people of Fiji remain under coercion to take onboard imposed conditions to regain their freedom. The new Constitution does not provide a proactive transitional path to democracy that is based on total forgiveness and reconciliation. To end the crisis once and for all, the military needs to admit the terrible wrong committed to the country and the people. It needs to have the foresight to negotiate as equal participants in the process. Through this process, immunity may be considered as a remedy to obtain a national consensus. Once Fiji is united , only then would it be appropriate to reconcile with the British Monarch on the events of 1987, 2000 and 2006. This perhaps outlines the void that surrounds the 2013 imposed Constitution. The vital interest and special veto has been removed. Thus decisions on indigenous affairs will be made by Parliament which is really conrolled by the military leader. Given the promises of the imposed Constitution of the Republic of Fiji 2013, the Regime fails to resolve the situational needs of the iTaukei people and neither does it create a platform for their development. The imposed Constitution of the Republic of Fiji 2013 only entrenches the Regimes crown proprietary powers over the resources of the iTaukei people and has devised mechanisms to use land as an asset for economic growth. It has placed the State in a position to fraudulently gain finacially and politcially (using customary owned resources) under the guise of protecting public interest.,all at the expense of indigenous proprietary rights through the abolishment of iTaukei safety-net institutions that were erected to protect native land from being exploited and the iTaukei population from being swamped. On the other hand, a better Constitution would always position the indigenous population to have access to decision making bodies or establish traditional institutions in an incorporated governmental infrastructure with legitimate powers and functions within the Constitution to influence land and resource policies that enables customary, economical, fiscal and political benefit through royalties, rentals, taxes and other economically beneficial policies. The income derived from these benefits would have the propensity to transform iTaukei people into competent entrepreneurs and investors. The imposed Constitution of the Republic of Fiji 2013 totally deprives the iTaukei people their right to freely enjoy their resources according to their native laws and customs.