Some Thoughts about Customary Land (Working Paper) [2001] JSPL 15; (2001) 5 Journal of South Pacific Law 73

Working Paper 5 of Volume 5 2001

SOME THOUGHTS ABOUT CUSTOMARY LAND
By Dr. D. E. Paterson1

This paper has been prepared to try to highlight what appear to the author to be some principal issues with regard to customary land in countries of the South Pacific at the present time. It is not an attempt to deal with any one of these issues in extensive detail and great depth, but it does try to sketch out the main aspects of these issues and to suggest some steps that may be taken to remedy aspects of difficulty.

But before going further, it is necessary to make some preliminary explanations about the scope of, and the terminology used in, this paper. First, this paper is confined to the English-speaking countries of the South Pacific. It would be presumptuous indeed to claim to have sufficient knowledge or understanding of the customary land regime in the French-speaking countries of the South Pacific to include them in this paper.

Secondly, it should be mentioned that for convenience the term “colonial” will be used in this paper in a general sense to refer to a condition of constitutional dependency, whether technically and legally, that of a colony, a protectorate, a protected state, or a sphere of influence. Thirdly, the term “European” will, again for convenience, be used in a general sense to refer not only to people from the continent of Europe, but also to people from the United Kingdom and their descendants in Australia and New Zealand.

Determination Of Rights To Customary Land

It is clearly essential for the maintenance of peace and order within any community that there should be some method for resolving disputes about who is entitled to what rights to land that is both efficient and acceptable.

This proposition is no less true in countries of the South Pacific than it is in other countries of the world, but in countries of the South Pacific there are the special features of rights to customary land, which have to be taken into account in any system for dispute resolution i.e. that most customary land is owned jointly; that persons other than the owners may have subsidiary or secondary rights, less than rights of ownership, in customary land; and that the rights of persons in customary land are derived from and determined by rules of custom of the area in which the land is located and which are expounded by chiefs and elders but which are normally not written down or officially recorded, except in Kiribati and Tuvalu.

Clearly, if efficient and acceptable decisions are to be made about rights in customary land, there are certain criteria or requirements that the persons making these decisions must meet :

- knowledge of relevant customs - Since rights to customary land are based on the customs of the area in which the land is located, the persons making the decisions must either themselves have knowledge of the custom rules of that area, or they must be advised by people who do have such knowledge.