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Melanesian Law Journal |
Yam Gardens in the Sea: The Marine Claims of the Trobriand Islanders of Papua New Guinea
Yoli D. Tom’tavala[*]
Introduction
This presentation falls under the sub-theme: “Ownership patterns and the management of traditional knowledge in indigenous Papua New Guinean (PNG) Societies”. The subjects of the study are the Trobriand Islanders of the Milne Bay Province. In general terms, the paper describes traditional uses of marine resources and offers some analysis of the nature and basis of rights or claims which the islanders made in respect of marine areas and the resources of those areas. The paper attempts to address three main questions.
For this purpose, the paper will describe the predominant types of marine environments, the claims or rights which the islanders make over these and the main uses or systems of tenure of the islanders over marine areas and resources of those areas. The descriptions include how the islanders use different marine areas (including beaches, mangroves, inlets of the sea, coastal waters) and resources thereof (flora and fauna) and how they regard these areas and flora or fauna according to their customs and practices. For example, fishing reefs as their “yam houses in the sea.” Then the paper identifies and explains concepts which underpin the islanders claims as based on their customs or customary laws.
In juxtaposing the proposed contents of the paper with the preferred sub-theme, it is apparent that the paper will address “ownership patterns” and of “management” of marine natural resources which are utilised and claimed according to customs of traditions. But the resources are tangible instead of being traditional knowledge or intellectual property per se. Obviously, the utilisation or management of any tangible property presupposes the possession of relevant knowledge. Regrettably, my understanding of traditional marine-related knowledge of the islanders is too imperfect to enable me to discuss them here.
1. The Trobriand Islanders
A) Physical
The Trobriand Islands lie in the Solomon Sea due north of the eastern tip of mainland New Guinea. The Trobriand group of islands is comprised of eight inhabited islands and over a hundred uninhabited islets. The largest island in the group is Kiriwina, which is some 45 kilometres long and 2 to 14 kilometres wide and is inhabited by over 25,000 people who live in about 60 villages. It is a “district” for purposes of governmental administration and boasts the district headquarters (Losuia), an airport, a rural health centre and a high school. Flanking Kiriwina in the eastern, southern and western directions are the rest of the inhabited islands: Kitava, Vakuta, Muwo, Giwa, Kuyawa, Munuwata and Kaileuna. The biggest of these are Kitava, Vakuta and Kaileuna, which have between 5 to 10 villages in each, whereas the rest are a single-village island with less than a hundred inhabitants in each. A feature common to all these islands is large populations relative to land areas.
Unlike most of the islands of PNG, the Trobriand Islands are merely raised coral atolls. Hence, they are almost uniformly flat except for Kitava which has a slight elevation. The dead coral foundations are covered by fertile humus, which support tropical vegetation and, more importantly, enables food cultivation on all the inhabited islands.
B) People
Trobriand Islanders of PNG are Melanesians and, together with the aboriginal inhabitants of the other parts of the Milne Bay Province, were known to anthropologists as the Massim. The Kula trade, which the Massim practised, demonstrates their mastery of navigation and cultures, which are closely connected with the seas. Despite many common cultural practices, anthropologists, such as Malinowski, have noted that the Trobriand Islanders still “stand out by ever so many peculiar manners and customs from the rest of Papuo-Melanesia”, and “show greater affinities... with some of the more distant oceanic populations in physique, culture and institutions than with their near Papuan neighbours on the mainland of New Guinea.”[1]
Since the beginning of contact with outsiders, the Trobriand Islanders have continued to attract anthropological interest because of their rich culture which has withstood more than a century of western influences wrought by colonial governments, missionaries, traders and even Allied soldiers – much to the chagrin of early anthropologists like Malinowski. The first Europeans to settle in the area where Methodist missionaries (1894) and were followed by Australian colonial officers (1906) and European traders who followed to set up trade stores and engaged in pearing activities. By the 1940s the colonial government had built a hospital and, along with Missions, opened schools to educate the islanders. The Second World War saw an influx of American and Australian troops who set up extensive base operations in Kiriwina. These included airstrips, (one of which is still being used today) and a road network, which connected most of the villages in north Kiriwina.
C) Society
Today the influences of western culture and values are quite evident throughout the Trobriand Islands. However, despite many amenities of western culture and modernisation, “the Trobriand society”, as noted by recent anthropologists, “has proved far more resilient to change than even Malinowski believed possible”.[2] The tenacity of Trobriand culture and values is such that it would be easy to say that Trobriand Island societies today are fundamentally traditional. Apart from a few public servants and a handful of others who are employed by the few businesses at Losuia, almost all the resident island people live in villages. Perhaps the villages best illustrate the traditional character of Trobriand societies. In particular, this is reflected in the basic lifestyle of the islanders, their subsistence ways and the important role that customs, beliefs and traditional values have in their lives.
The culture ethnicity of the Trobriand Islanders is reflected in a common language and three social principles, which lay the foundations for social organisation. These are the principles of clan division, matrilliny and rank.
Language
The language spoken in the Trobriand Islands in the Kilivila. Even though there are variations in dialect between and even within the different islands, the islanders generally have sufficient understanding of the dialects of others for general conversation.
Clans
There are four clans (Kumila) which cut across geographical and local divisions in the Trobriand Islands. Members of these clans are scattered throughout the islands and are normally represented in most villages. Each of these clans has a different totem that may be a bird, animal or fish. A person assumes membership of his or her mother’s clan by birth. Clan members perform certain ceremonial duties together but do not have as many rights and duties as those which pertain with their matrilineages or sub-clans.
Matriliny
Upon birth, a person also becomes a member of his or her mother’s lineage or sub-clan (dala). There are over 100 different matrilineages in the Trobriand Islands whereby members trace descent through women to named ancestors. Members of the matrilineage also own land and other property in common and generally assume the same obligations such as observation of food taboos. Furthermore, members of a matrilineage are usually attached to the locality where their ancestors emerged or claimed rights to land or other property.
Kinship, as may be apparent from the foregoing, is based on a matrilineal system. Thus, succession of rank, membership in clans and lineages, and the inheritance of land and other possessions descend in the maternal line. Generally speaking, women are highly regarded by the islanders. Perhaps the clearest indication of the status of women is that tradition dictates that men make yam and taro gardens for their mothers, sisters or daughters.
Rank
The most dramatic aspect of Trobriand culture that sets it apart from most other Melanesian cultures is the system of rank in the society. At the top of this hierarchy are persons of a certain lineage called the Tabalu, who provide the paramount chiefs of the islands. After this lineage are several other levels of chiefly lineages whose members rule certain tribal districts or villages within the islands. The chiefly lineages are separated from the commoners by their prerogatives to wear and possess certain bodily and house decorations, and by their abstention from certain foods which include stingray and certain species of bony fish. Like most other Trobriand customs, the system of rank has its basis on origin stories that tell of how the chiefly lineages gained higher status and power over the commoners. Today, the traditional chiefs still exercise considerable power and influence over the islands.
The Islanders existence is necessarily subsistence-based. The two main activities of the islanders are gardening and fishing. Gardening is the principal activity around which the lives of the islanders revolve. As noted by an anthropologist, “Half of the natives working life is spent in the garden and around it centres perhaps more than half his interest and ambitions”.[3] The main crops grown are yams, taros, bananas and sweet potatoes. In gardening the islanders grow much more than they need. However, this is because gardening is more than an economic pursuit. In any given gardening season, a man usually makes more than one garden. Of these, he uses one for his subsistence needs and allocates the rest to one or more of females relatives or to an elder of the same lineage. This creates a complex social system that binds the society together. Yams especially are very important as a symbol of wealth, power and prosperity. After the harvest, yam houses are filled amid much festivity. A yam house filled to the brim reflects wealth and prestige for its owner.
II. Marine Tenures and Traditional Marine Space and Resource Claims
Fishing is the next most important economic activity in the Trobriand Islands and is carried out in all of the islands. The type, scale and significance of fishing differ in the different islands as dictated by the coastal maritime environments, the species of fisheries found in the coastal waters, the prevailing weather conditions and customs and traditions regarding fishing and eating of fish.
A) Marine Environments
The islanders classify the marine environments surrounding the islands two-fold: luma and dom.
Luma
The first type, called luma, is characterised by narrow, near-shore reef margins or cliffs that taper off into deep blue seas. This maritime environment can be found around part of Kitava and the eastern coast of Kiriwina stretching from Kaibola in the north down to Gilibwa on the southern tip (see Map in Figure 1). The main fishery species in these waters are reef fishes,[4] sharks, certain semi-pelagic species, crayfish and shellfish. In the nearshore and around the reefs, the people fish with spears, nets and handlines. Beyond that, in the open seas, the islanders use canoes to troll or sink hooks and lines. It is only possible to fish in the open seas during periods of relative calm, which fall between October to December and February to April. Fishing in these waters does not yield as much as the lagoon and is mainly done for subsistence purposes.
Dom
The other type of coastal marine environment is the lagoon, called dom, which consists of an inner lagoon and an extensive formation of reef margin and flats. The inner lagoon covers an area of some 490 square kilometres and runs along the western coast of Kiriwina down to Vakuta island. Its extent on the western side is delimited by a navigable passage. The waters of the lagoon are greenish in colour and cover extensive seaweed-covered mudflats, inter-tidal areas and mangroves. The mudflats yield crabs, crocodiles, molluscs, beche-de-mer and clams while the surrounding waters abound with fish. Most of the lagoon villagers mainly use set and drive-in seine nets to catch mullet, mackerel and a host of other schooling lagoon fishes. Except for severely adverse periods during the time of the southeast trade winds (June-September), fishing in the lagoon is open all the year round.
The reefs of the lagoon and fringing areas are claimed and worked only by the villagers of Kevataria who use poisonous roots to stun reef fish and drive them into nets or spear them. This type of fishing, called loluwa, is undertaken all the year round. The productivity of the reef patch is so significant to the Kavataria villagers that they commonly refer to their reefs as their “yam houses”. The analogy is obvious: productive reef patches are a constant source of food and wealth for its owners.
B) Cultural Significance of Fishing
For the lagoon villagers of Kiriwina fishing is a serious and important activity.[5] Since fish is the principal source of animal proteins on the islands, tradition has long dictated that the lagoon villagers trade part of their catch to the inland villagers who are unable to fish. Thus, for up to 4 days every week when the fishermen return from fishing, they would be met on the shores by inland villages who pay cash, called kokwava, or exchange garden produce or betel nuts, called vava, for fish. At other times the inland villagers would bring to the fishermen yams and other garden produce in advance. Then the fishermen would set out to fish with the specific intent to pay back what had been given. This ceremonial exchange, called wasi, does not only have economic significance but is an important aspect of Trobriand culture.
Fishing is also an important activity for the islanders of Vakuta, Munuwata, Kuyawa and Kaileuna. These islands lie close to extensive formations of reef margins and flats and, hence, depend on reef fishes. The main fishing methods are spear fishing and the use of drive-in nets, hooks and lines. Unlike the coastal villages of Kiriwina, these islanders fish mainly for subsistence purposes and for sale at Louisa. For a couple of days each week they would sail to Losuia to sell fish to Kiriwians or otherwise exchange fish for garden vegetables. The sale and exchange of fish for vegetables is especially important to these islanders because of the relative insufficiency of food gardens in their islands.
Despite the relative abundance of fish in the coastal waters of the Trobriand Islands, commercial production for export has not taken root amongst the islanders. In the late 1800s, European traders encouraged the lagoon villagers to dive for pearls and beche-de-mer, which were exported by the traders. This reportedly brought some prosperity to the lagoon villagers and made the islands an important industrial fisheries base but the industry had largely disappeared by the 1930s.[6] Subsequent attempts by foreign businessman and the provincial government to establish artisanal or commercial fishing met with little success.
C) Traditional Marine Tenure and Claims to Marine Species and Resources
Apart from fishing, the seas have other functional and metaphysical connotations to the islanders. Hence, based upon their customs, practices and traditions (customary laws), Trobriand Island coastal villagers claim or assert notions of rights of varying degrees to beach areas, mangroves, inlets of the sea, reefs, inshore or near shore coastal waters and the resources thereof. Compared with common law and statutory property regimes, customary conceptions of rights appear uncertain are generally vehement in their assertions of their rights to whatever resources. To the Trobriander, the answer to the question “to whom belong the beaches, coastal waters and resources of the waters” would elicit the response: ma vavagisi (“our something”). On the face of it that would appear uncertain but upon further study, that determiner ma (our) would reveal a plethora of rights of interests.
Following on, the paper describes the uses and claims or rights which the islanders assert to marine spaces and resources. These shall be discussed under the following themes: land and beaches, coastal waters and reefs, and marine resources.
Land
As a general rule, land in the Trobriands is vested in particular matrilineages, called tolipwepwaya (landowners). Control of lands of a matrilineage is normally vested in its elder, called Tokarewaga, who exerts considerable influence over others. However, individuals can also own land and can dispose of their private land in any manner that they see fit. Generally speaking, traditional landowners require payment (pokala) for use of their land by others who are not sufficiently connected to them. Particular claims are easily determined because all garden lands in the islands have been defined by set boundaries and most have also been given specific names.
Beaches
As a general rule, all beaches are owned. This is because the lineages, which own land with frontages to the foreshore also, claim the beaches. The beach owners are called Tolikwadewa. The claims of a particular matrilineage to beaches parallel its land boundaries. At the same time, all the beaches that are owned by the matrilineages based in particular coastal villages are cumulatively regarded as the “village beaches” or kwadewa. The village beaches are regarded as common grounds and open for use by all villagers for common and ordinary usage. These including bathing, picnicking, construction of canoe shelters, collecting sea water for cooking, cleaning kitchen utensils and removing sand or gravel or whatever items which are washed ashore.
Outsiders (i.e. people who do not belong to the village) are also given certain concessions. For instance, visitors from other islands can beach their canoes on the village beaches and to ply the coastal waters and to gather coconuts or whatever else they find for sustenance and inland villagers (who have no beaches) are allowed to use the beaches for bathing purposes. Trobrianders believer that bathing in seawater is more invigorating and theapeutic.
However, in certain circumstances, traditional beach owners assert their proprietary rights and demand payment for uses of beaches by outsiders. The most common example is the demand for payment for removal of sand and gravel for construction purposes. A common observation is that whilst the concessions granted to outsiders are entrenched in customs, these are now subject to greater scrutiny by local beach owners. This is generally as a result of increasing suspicion by the beach owners that outsiders sometimes use their beaches for commercial purposes or other gains. For example, a village elder at Wawela village complained that a company involved in beche-de-mer harvesting and marketing built a drier on the beach at Wawela in 1987 to smoke beche-de-mer. As this was a commercial or non-traditional use of the beach, the villagers were aggrieved that they were not compensated. Because of these increasing suspicions, many villagers are threatening to keep outsiders off their village beaches. This response is a novel one prompted by recent events rather than a traditional position.
Mangroves
Called pasa, these are extensive on the western shore of Kiriwina and on the islands in the lagoon. Mangroves support limited fisheries like collecting shell fish and catching mudcrabs Because of their strength, mangove woods are alos used for building as yam sticks. On Kiriwina, the lagoon villages claim the mangrove patches whose lands adjoin the mangroves. However, ownership of these is vested in the village as a whole rather than to particular lineage or individuals. The mangroves on the islands of Kiriwina lagoon are open for use by several adjacent lagoon villages but the ownership of these islands is still not settled.
Ocean
Trobriand villagers unanimously agree that they have special rights or claims to the inshore and nearshore areas of the coastal waters and the reefs thereof.
Oceans
Oceans are by nature free, open and incapable of being possessed. Hence, as is universally the case, claims to marine spaces or waters are contingent upon functional uses. In the Trobriands, they assert ma bolitasi (“our seas”) over waters wherein they traditionally fished. The claims or rights appear to vest in the villages as a whole rather than to individuals or matrilineages.
The outer limits of these claims differ according to where the people traditionally fished. For example, the villagers on the northern coast of Kiriwina where shark fishing is predominant indicated that they owned the waters as far as the eye can see from the top of the tree on the beach. This is because their pursuit takes them so far out that it is only possible to see them from the treetops. Most of the other village’s claims extend beyond the fringing reefs to where they traditionally fished by sinking hooks and lines or the reef patches they fished from.
For the north-western villages of Kiriwina which stretch from Lobuwa to Mwatawa, their claims do not stretch beyond 2 nautical miles from their shores. The claims of the northern shark-fishing villages of Kaibola to Mutawa extend up to 3 nautical miles from their shores since their pursuit takes them further out to sea than is normally done for other deep-sea fishing activities. The eastern seaboard fishing and claim the waters which extend up to 2 nautical miles from the shores. The only bay on the eastern seaboard is Mweuya, which is claimed by the villagers of Okaiboma. Gilibwa on the south and the lagoon villagers from their shores. Even these do not lie more than 10 nautical miles from the nearest coast of Kiriwina.
The Islanders do not generally enforce their ocean claims by practising territorial exclusivity. For example, outsiders are generally allowed to navigate, bathe and fish these waters. There are various reasons for this. The main reason is that navigation is a common traditional use of the seas. The imposition of restrictions would hinder it and affect inter-island travel. Furthermore, by allowing others to navigate, bathe and fish in one’s waters, one can expect the same consideration when one visits other villagers. The principle of reciprocity is a compelling one in Trobriand society (see below). Also too, the imposition of trival rules that restrict movement or usage or one’s resources indicates meanness or piki. Noted for their generosity and openness, the islanders consider this a major sin.
However in certain circumstances, the enforcement of territorial exclusivity is allowed. A well-known example of long historical origin is when the Labai villagers fish for Kalala (mullet). Labai, a village on the northwest coast of Kiriwina, is commonly regarded by islanders as a source of their heritage and as such, has a special position for the keeping of traditions and magic. This village is renowned for the fishing of kalala (mullet). Every few months during calm seasons and full moon, schools of this fish seeking estuaries to spawn, enter the shallow waters between the fringing reef and beach of Labai. During the time when the villagers are ready to fish the mullet, they forbid outsiders to enter their village or beaches. This exercise is undertaken in accordance with the dictates of the magic for the Kalala fishing.[7]
Reefs
Coastal villages also assert claims to reefs. In most villages the claims appear to vest in the villages as a whole. The reefs in question here are the drying reefs which fringe the coast of eastern seaboard of Kiriwina and most of the other islands. These claims are contingent on the fact that the reefs are natural extensions of the village lands.
However private ownership of reefs by individuals or matrilineages is also recognised. This applies to Kevetariya villagers who assert ownership rights to reefs in the lagoon and on the fringes of the lagoon too. Kevatariya is a large fishing village that lies on the shores of the lagoon, on the northwest coast of Kiriwina. These villagers own the coral patches in the lagoon and the extensive fringing reefs of the lagoon. These reefs extend up to 15 nautical miles from the village and 10 nautical miles offshore. Each claim is clearly delimited by the villagers, recognised, and forms part of the family inheritance. Because the reefs afford especially good fishing opportunities all the year round, they are regarded as much as gardens on land and are sometimes referred to as “yam houses”.[8] Trespass to the reefs of others is considered as theft, a serious transgression in custom, but other villagers are permitted to rent and fish in the patches of others. The claims of the Kevatariya villagers are widely recognised by other lagoon villagers.
Marine Resources
Marine waters contain all types of flora and fauna. These regenerate naturally and most are free ranging and incapable of possession unless caught or harvested. To the question “to whom belong the flora and fauna in the waters you claim”, the Trobrianders answer “ma vavagisi” (“our something”). “Ma yenasi”, “ma vigodasi” (our fish, our shell fish, etc). The justification they give is that the reefs or the waters belong to them so all flora and fauna found in these also belong to them. The claims appear to vest in the village as a whole, with the exception of private reefs of Kevataria villages. Concessions are allowed to outsiders or non-villagers depending on whether the resource in question is edible or has commercial value or otherwise.
Edible Resources
Edible marine resources include most nekton species, crustaceans, shellfish and some seaweed. With regard to some marine animals like stingray and the bony silver fish (ketakeluva), the consumption taboos are partial in that some islanders are permitted to eat them whilst others are not. Islanders assert the right to exploit edible marine resources of their village waters. So a villager is allowed to fish in the waters claimed by the village at any time and for whatever reason, without any restrictions on the type of gear used or the size of catch.
However, for outsiders or non-villagers, the position differs. In the primarily agricultural coastal villages, especially on Kiriwina, the villagers acknowledged that despite their ownership claims to coastal waters and fisheries resources, outsiders are permitted to fish in these waters. No size, gear or other restrictions are imposed as long as the fishing is for subsistence needs. These villagers expressed the view that outsiders would not be allowed to conduct artisanal or commercial fisheries in their waters.
In the primarily fishing coastal villages, especially on Sim’simla and south and western Kiriwina, the respondents indicated that outsiders would not be free to fish in their waters. In some villages the position is taken that access for outsiders is only permissible upon the payment of some monetary compensation. Notices to this effect have been posted in several villages. In the southern Kiriwina villages of Gilibwa and Wawela, outsiders are expected to pay K20 a day for the right to fish. Chief Katanaki of Bwadela village claimed a daily fee of K100 which is purportedly one half of the estimated earnings from a day’s fishing. In Kevatrariya the response was that outsiders would not be permitted to fish in their reefs even if they paid a fee.
The position with regard to artisanal or commercial development of edible marine species is unanimous. The general view was that each village had the exclusive right to make money from its resources. Outsiders would not be permitted to do so.
Non-edible Resources
Non-edible resources can be classified three-fold: species with potential for economic development, those with no present uses and non-living resources.
The first category includes those marine resources which, although sometimes eaten, are not commonly used as food although they are significant comercial fisheries. Examples of such species are beche-de-mer, pearl oysters, green snails and trochus shells.
Of these, the islanders also assert rights over the resources found in their waters, especially if they are to be exploited commercially. Outsiders may harvest only for food. In some villages, outsiders would be permitted to exploit these resources only upon payment of a fee. For example, the Sinaketa villagers indicated that they would demand a lump sum payment of K1000 from any outsider who intends to harvest bech-de-mer in their waters. An alternative approach mentioned was to seek to develop these resources in partnership with outsiders.
The second category of non-edible marine resources is those that could be called “pests” at the present time. These include many species of rays, starfish and numerous marine life which have no direct uses to man or do not have economic significance. The islanders also assert ownership claims to these. The general feeling is that outsiders are free to utilise these resources although the villagers would demand compensation if the resources were commercially exploited.
The third category of non-edible resources is nonliving resources. The gathering of non-living resources from the sea has a long history in the Trobriand Islands. Before the introduction of granulated salt, the islanders used seawater to cook their food with. Of more social significance were seashells. Some, like cowrie, were regarded as traditional valuables whilst others were made into shell necklaces and arm-shells which are the two principal commodities used in the kula trade. Furthermore, all the villages surveyed reported the gathering of sand and gravel for various domestic purposes. Perhaps the most significant of the various non-living resources is coral, which is gathered and burnt to produce lime. This lime is used as an ingredient in the chewing of betelnut, a major pastime on the islands. The villagers expressed that the gathering of these various non-living resources was exclusive to them. Outsiders would be forbidden to gather these resources unless the villagers permit them.
III. Basis of the Islanders’ Claims
Customs or Customary Law
The claims of the islanders to coastal waters, reefs and resources thereof are made on the basis of their customs or customary law. As compared with statutory or commonly law property rights, the nature of the customary claims may appear uncertain. Irrespective, the people are earnest in their assertions of their rights or claims and would be willing to enforce their claims by self-help means. Further, even though unwritten the claims are generally well known and respected by other islanders.[9]
Four concepts can be identified which underlay the marine claims of the Islanders. These are land ownership, heritage, mother-right and reciprocity.
A. Land Ownership
The basic principle that supports the islander’s marine claims, especially with respect to beaches, inshore and offshore waters is their ownership of lands with frontages to the foreshore. As an elder laconically pointed it out, “The coastal waters, the fishes thereof and the beaches all belong to us because we own the land.”[10] Even though the islanders make a terminological distinction between land, called pwepwaya, and the sea, called bolita, they know that beaches, coastal waters and the resources thereof are a natural and inseparable appurtenance of their lands. Hence, they regard their maritime claims as natural extensions of their rights to land. This view is not peculiar to customary regimes.
B. Heritage
The islander’s original and basically uninterrupted occupation of the islands has imbued in them a sense of being attached to the islands and the islands being a part of them. The islanders regard that they alone are the tolivalu or real inhabitants of and right holders in Boyowa (the local name for the islands). People who settle in the islands from elsewhere cannot be tolivalu. This principle persists because outsiders who have settled in the islands have not disturbed the traditional land and marine tenures. The significance of this is that their lengthy and peaceable enjoyment of their claims gives them security of tenure. Again this motion is also known to the formal legal cultures.
C. Mother-Right
For those marine claims held by individuals or matrilineages, the rights attach by virtue of birth. In his study of native law, Malinowski’s regarded this as one of three basic principles which govern Trobriand society. It comprehensively underlies all the customs and institutions, including succession to social privileges, economic inheritance, the rights to land, marine or coastal areas and marine resources. Simply stated, the mother-right principle (toliu’ula) is that upon birth a person becomes a member of his or her mother’s line (dala) and has automatic right to own or use economic resources which are owned by the lineage or to enjoy social privileges which pertain to his or her lineage.
Like most other traditional rights or privileges, claims to maritime areas or marine resources, as based on the principle of mother-right, are traced to given ancestors (tabusi) who may have made the original claims or otherwise acquired legal rights by other means. Original claims are the most influential.
D. Reciprocity
This principle came to be attached to Malinowski’s theory of law. He identified reciprocity as the basis to separate native laws from native customs. For him, a customary legal obligation is one which a person undertakes in expectation of receiving something from others. For example, a fisherman who shares his catch with his neighbours will expect to receive part of the catch of others. The application of this principle to marine claims is seen in the practice of marine right-holders making concessions to others. Villagers who make claims to beach areas, seas or resources do not always exclude no-villagers because of the concern for the principle of reciprocity. Further, as earlier mentioned the imposition of trival rules that restrict movement or usage of one’s resources indicates meanness or piki, a trait which islanders disapprove of.
IV. Relationship of State Law and International Law
The task now is to consider how the marine tenures or claims of the islanders fare under the laws of the state and under prescriptions of international law.
A. National Law
Fisheries Legislation
Aspects of customary marine tenures, especially fishing rights, were recognised by legislation early during the colonial period. Immediately prior to the proclamation of the British Protectorate in Papua in 1884, industrial fishing for pearl oysters, pearl shells, trochus shells and beche-de-mer by expatriates had become established in many places in Papua. Therefore as early as 1891 the colonial administrations enacted a series of Ordinance to regulate and control this fishery by the exercise of licensing and other powers. However, these Ordinances did not apply to the natives who were free to harvest these marine products and to sell them to licensed buyers. Thus, two proclamations issued under The Pearl Shell and Beche-de-mer Fishery Ordinance 1894 (Papua) in 1903 and 1910 to prohibit the harvest of pearl shells and beche-de-mer in the Kiriwina lagoon and waters of surrounding islands, continued to exempt harvest by “natives”. In fact this scheme of exempting natives from the licensing requirements imposed by legislation were followed by succession national fisheries legislation.[11]
The Fisheries Act 1994 (No.21/1994) (repealed), section 36, provided even more clearer recognition and respect for customary fishing rights.
36. Customary Resource Ownership
The rights of the customary owners of fisheries resources and fishing rights shall be fully recognised and respected in all transactions affecting the resources of the area in which the rights operates, and owners of resources and rights shall not be deprived of their traditional fishing rights.
This provision represents an extraordinary recognition of traditional claimants rights to fishery stocks and fishing areas. Implicit in that is a duty by the state to acknowledge the existence of the rights of customary resource owners and, if transactions to the resources are to occur, consult them and make allowance for rental charges. The Fisheries Management Act 1998 (No.48/1998), which repealed the above Act, provides similarly under section 26: minus the prohibition against deprivation of traditional fishing rights.
Customs Recognition Legislation
The Native Customs Recognition Act was passed in 1963 to enable the courts to recognise and apply customs in appropriate cases which come before them. The Act (revised Chapter 19) in Section 5 says that in civil cases, the courts may take customs into account in relation to such mattes as:
(b) the ownership by custom of rights in over or in connection with the sea or a reef or in or on the bed of the sea or fishing rights;
(c) the ownership by custom of water, or rights in over or to water.
The idea behind this legislation is clear. When customary rights to seas, reefs or marine flora and fauna are proved to the satisfaction of the courts, they are mandated by the Act to recognise the existence of such rights. This pragmatic recognition of customary rights is due to the strength of customary marine tenure systems. The colonial administration couldn’t fail to recognise them despite the fact that at common law the Crown alone has jurisdiction and proprietorial rights from the high water mark and encompassing the seas, reefs or marine flora and fauna.
National Seas Act Chapter 361
Parliament enacted the above Act in 1977 to legislate the extended marine zones claimed by the state. The claims included areas of archipelagic waters and territorial seas.
The archipelagic waters are contained in three archipelagoes, the main one being the “Principal Archipelago”. This begins at the northern most point of the land boundary with Indonesia, then follows specified geodesic lines which successively link the outer-mostlow water points of islands in the north-east and east of the mainland and then follows the south coast to a point on the northern border of the Torres Strait Treaty Area. Part of the lines of the principal archipelago connect the outer most low water points of Kadai Island (north-west of Kiriwina) to Bomatu Poin on the north of Kiriwina, thence to Iwa Island on the southeast.[12]
Under the Act, the state claims a 12-mile territorial sea. The rule under section 1(2) is that each island and low-water elevation forms a separte and continuous baseline, meaning that each island generate its own 12-mile territorial sea. The combined effect of the provisions on demarcation of the principal archipelago and the 12-mile territorial seas around islands is that all the waters claimed by the islanders fall within archipelagic waters and the territorial islands of the state. Under international law, the coastal state has sovereignty over both zones.
What is the implication of sovereignity on the rights of the state in the waters concerned? When international law gives coastal states the right to exercise sovereignty in their internal waters, archipelagic waters and territorial sea, it gives them the fullest rights known to law and “allows for the maximum implications that may be drawn from the concept of sovereignty.”[13] Many countries in the world recognise the jurisdiction and properietary rights of states over coastal waters, etc. However, this depends on the provisions of municipal laws of states. It is possible for states to recognise private claims over areas of its coastal waters as long as these are consistent with internationally protected uses of the seas.
B. International Laws and Policies
Customary marine claims of local or indigenous people also find support in various international documents. These comprise both treaties and documents of less-than-treaty status: some adopted in the context of environmental concerns and others relate to initiatives for protection of indigenous people.
Environmental Related Documents
At least three international environmental documents directly address the imperative to recognise the natural resource rights of indigenous people or local communities. These are the Report of the World Commission on Environment and Development of 1987, the Convention on Biological Diversity 1992 and Chapter 17 of Agenda 21.
The World Commission’s report states the matter simply but eloquently:
The starting point for a just and humane policy for such groups is the recognition and protection of their traditional rights to land and other resources that sustain their way of life-rights that may define in terms that do not fit into the standard legal system.
The Commission’s report led ultimately to the convening of the United Nations Conference on Environment and Development in 1992. Under the auspices of this process, two documents were adopted which also make express references to the need to recognise indigenous or local people’s rights to natural resources and their traditional knowledge. The Convention on Biological Diversity 1992 recognises in its preamble “the close and traditional dependence of many indigenous and local communities...on biological resources and the desirability of sharing equitably benefits arising from traditional knowledge.etc. relevant to conservation of biological diversity”. Article 8(j), requires contracting states (including PNG) to “respect, preserve and maintain knowledge.and practices of indigenous and local communities...for conservation and sustainable use of biological diversity.”
The other document, which was adopted during the same process, was Agenda 21. Chapter 17 deals with the oceans and seas. Chapter 17.75 identifies as an objective of management of areas under national jurisdiction the need to “take into account traditional knowledge and interests of local communities, small-scale artisanal fisheries and indigenous people in development and management programmes”. To this end, chapter 17.82 identifies, inter alia, the following activities.
(a) Recognise the ...special situation of indigenous people and local communities, including their rights to utilisation and protection of their habitats on a sustainable basis;
(b) Develop systems for the acquisition and recording of traditional knowledge concerning marine living resources and environment and promote the incorporation of such knowledge into management systems.
Indigenous Rights related Documents
International concern for the rights of indigenous peoples have gained momentum in recent times. This is evidenced by the United Nations declaration of 1993 as the International Year of the Indigenous Peoples and 1995-2004 as the International Decade of the World’s Indigenous People. In 1994 the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted the Draft Declaration on the Rights of Indigenous People. This document sets out a wide catalogue or rights of indigenous people, including marine resource rights. Included under Part VI are articles 25 and 26.
Article 25 says:
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationships with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.
Article 26 adds:
Indigenous people have the right to own, develop, control and use lands and territories, including, the total environment of the lands, air, waters, coastal seas...flora and fauna and other resources which they have traditionally owned or otherwise occupied and used. This includes the right to full recognition of their laws, traditions, and customs, land-tenure systems and institutions for the development and management of their resources, and the right to effective measures by States to prevent any interference with, alienation of an encroachment upon those rights.
As may be obvious, these provision are very wide and comprehensive in their calls for recognition of resource rights of indigenous peoples. It explains why the document is making its way through the various UN organs, before it is adopted by the UN General Assembly.
V. Problems and Future Directions.
The tenor of the above discussion on the content of customary marine space and resource claims by the Trobrianders is that they accord, at least in their broad outlines, with relevant national laws and international legal and policy prescriptions. Irrespective, two major types of problems are identifiable.
Competing Access
The first is animosity in recent times caused by competing access to marine fishery resources. This occurred initially in the late 1980s when a company, which was associated with a local personality, was licensed to harvest, process and export beche-de-mer in waters around the islands. The traditional resource claimants were aggrieved because they were totally excluded from this activity, which centred in their traditional fishing grounds. They reported that their pleas for intervention by customary and state authorities went unhindered. The activities and animosities lasted until the stocks were depleted in the early 1990s.
The problem resurfaced in the mid-1990s when the local personality obtained licenses to engage in the harvest, rearing and export of live fish. The people again raised their complaints and even went to the extent of briefing a private lawyer in Port Moresby to pursue their case, possibly in court.
Inadequate Conservation & Management
From personal knowledge, Trobrianders do not have a strong conversation ethic. It is not unusual to see them catching juvenile stocks, catching more than they need or just catching and discarding certain species that are considered as pests. From historical records, it is evident that some species have been fished to extinction. For example pearling was once a major fishery on the islands but the stocks have been depleted for decades. When they reportedly made a modest recovery in the mid-1902, they were depleted again almost overnight. Another stock that has been depleted is beche-de-mer. In some coastal fishing communities, they now no longer catch certain species that they once caught. When I raised this concern with a season fisherman from Obulaku village, he responded with an age-old story: “If God put so many fish in the sea, how can we finish them all!” No probs’ they’re Trobs!
Future Directions
Since the adoption of the Fisheries Act in 1994, the future of traditional marine resource claims is more or less assured. However, what need to be done is for the state fisheries officials to spread the word around and develop guidelines as to how the recognition of customary marine tenures can be implemented in practice. It is obvious from the examples of problems in the Trobriand Islands that the pre-development consultation process was either deficient or totally lacking. Adopting the guidelines and publishing them will also make the licensing process more transparent.
Additionally, the role of fisheries extension officers should be strenghtened so that they do not concentrate only on assisting local people or fish. Where necessary, as in the Trobriands, they must educate the people to adopt proper conversation and management measures. Another novel duly is imposed by the requirement of the Convention on Biological Diversity and Chapter 17: that of gathering information from resource owners about their “knowledge, innovations and practices” which have wider application. After all, traditional knowledge has wider implications in our time.
[*] USP School of Law, Emalus Campus, Port Vila, Vanuatu. This paper was read at Sub-theme: Ownership Patterns and the Management of Traditional Knowledge in Indigenous Papua New Guinean Societies of the conference on the Transaction and Transmission of Indigenous Knowledge organized by the PTC Project of Cambridge and Brunel Universities UK and the School of Law, University of Papua New Guinea on Motupore Island, outside Port Moresby, Papua New Guinea.
[1] Per Malinowski in Argonauts of the Western Pacific (1984, originally published in 1922) at p.31 and in Coral Gardens and their Magic, Volume 1 (1965, originally published in 1935) at p.6.
[2] Per A. Weiner, The Trobrianders of Papua New Guinea, (1988) at p.25.
[3] Per Malinowski, Argonauts of the Western Pacific at p.58.
[4] The commonly fished reef species are snappers, groupers, rock cod, surgeon fish, parrot fish, goat fish, wrasses, trevally, etc.
[5] The recognised fishing villages on Kiriwina are Kavataria, Oliveyova, Teyava, Tukuwaukwa, Obulalaku and Sinaketa which all lie on
the shores of the lagoon.
[6] As a measure of the significance of fishing on the islands, the colonial administration passed a series of proclamations in 1903 and 1910 to regulate the harvest of pearl shells and beche-der-mer in the Kiriwina lagoon and waters of surrouding islands. The proclamations were issued under the Pearl Shell and Beche-de-mer Fishery Ordinance 1894.
[7] For a historical anthropological account of this tradition see, Malinowski, “Fishing and Magic” in 53 Man (1918) at pp.87-92.
[8] In the Trobriand Islands, the yam house is a store for yams which are not only used for food but are considered as wealth. Hence,
reef patches do not only yield food but also are a source of wealth to the owners.
[9] Anthropoligist Malinowski gives an example of this in his Coral Gardens and their Magic, Vol.1 (1965) at p.19. He described how non-traditional
fishermen of the pearl shells declined to participate in the pearl harvest despite the wealth it brought and the ease which it was
done, because they considered it unseemly to enroach upon established rights.
[10] Lat Digim’rina, former Okaiboma village elder.
[11] For example, the Fisheries Act Ch.214 (repealed) precluded itself from applying to “traditional fishing” which was defined under s. 1 as “fishing by natives (automatic citizens) where the fish are taken in a manner that, as regards the ship, the equipment and the method used, is substantially in accordance with the traditions of the indigenous inhabitants of the country”.
[12] Schedule 2, Part 1 of the National Sea Act Ch.No.361. The respective points are (ZY), (ZZ) and (Zza).
[13] Per D.P.O’ Connell, The International Law of the Sea, Volume 1 (1982) at p.80
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