The iTaukei Land Trust Amendment Bill 17 of 2021, which has now been passed into law, will perhaps go down as one of the most divisive laws to be en- acted by the Bainimarama government during its tenure.
As a consequence, the iTaukei Land Trust Act no longer requires the iTaukei Land Trust Board (iTLTB) and, by extension, the customary owners of iTaukei lands, to give their approval for any ‘mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law’.
What does this mean in layman’s terms? It means the that the oversight that TLTB used to have on those things has been effectively removed. More than a handful of legal experts, including the bush kind, have all agreed with this interpretation.
Moreover, consent can only be with- held by TLTB on other dealings with land where ‘there has been a breach of any lease condition’ (such as non-payment of rent) or “the application for any dealing in the land does not follow the law’. This is just ‘legal speak’ for the fact that TLTB has been deprived of rights of refusal, as the legal custodian of iTaukei lands, for the other dealings.
The Government has defended its action by saying that the amendment makes iTaukei land more attractive to potential investors who may be looking for a more streamlined and efficient process. This could potentially result in higher incomes for the landowners. Consequently, it brushed off, with Police assistance, what it claimed were sterile polemics from the Bill’s detractors. The Government said these people were determined to stir up political unrest in the country for their own gain and at the ex- pense of the ordinary iTaukei.
Under the 2013 Constitution, iTaukei land ownership will remain in perpetu- ity with the landowning units. In fact, this constitutional guarantee can only be undone if 75 per cent of the voting public agrees with 75 per cent of sitting parlia- mentarians that Fiji’s Constitution needs a comprehensive overhaul.
On the face of it, therefore, the owner- ship of iTaukei lands is securely in the hands of customary land-owners of the country through the TLTB. Be that as it may, it seems an amendment of the iTaukei Land Trust Act, on the other hand, just needs a simple majority in Parliament. It was no surprise then that, for all the Government’s self- proclaimed constitutional safeguards of iTaukei lands, the ease with which it engineered the passage of Bill 17 in our Parliament at the end of last month seemed like a legal blunder.
It is the ease of this law change that has caused so much consternation amongst most ordinary iTaukei landowners. Is this fair?
The rationale provided by the explana- tory notes that accompanied the Bill centred on alleged widespread bureaucratic inefficiency (red tape) at the TLTB – red tape that most often works against the lessees whose investment is often most at risk. In our view TLTB is, tacitly put, an archaic institution ruled by laws going back nearly 100 years and its administra- tive processes are often hindered, in equal measure, by jaw-dropping inefficiencies and political intrigue.
As such, the Government is of the view that any opinion opposing Bill 17 had to have a nefarious agenda behind it. Yet, in introducing the Bill that subsequently became law, the Government may have changed the priorities that were the reason for the setting up of the iTaukei Land Trust Act.
The whole legal apparatus that was initially set up to govern iTaukei lands revolved around protection based on ‘absolute discretion’ of the owner rather than profit. This was in light of historical attempts in the past by both the Colonial government and entrepreneurs in Fiji’s emerging political economy to alienate iTaukei lands for the so-called purpose of free enterprise and economic progress. Swathes of native land were lost in this way, especially under the headship of Governors O’Brien and, later, imThurn as well as through other overtly dubious means.
To put profit before protection, given the reasoning behind the legal protection of native lands, is to effectively put the cart before the horse. This makes iTaukei land and their owners’ discretion over it more vulnerable to the wily negotiators of contract law in the foreseeable future. Given the above, the explanatory notes do not establish a legitimate basis on which to amend the iTaukei Land Trust Act.
If there is administrative inefficiency at TLTB – in our view, the glaring, yet simple, procedural inefficiencies that ITLTB is well-known for – it does not make sense to amend a law to address it. Instead, we need to be looking at how TLTB’s own board and executive management are running the institution.
This also begs another set of questions: Does this new amendment also apply to lessees who happen to be leasing land from owners of freehold property? Or are we witnessing the right of ‘absolute discretion’ associated with freehold ownership being removed by law when it comes to iTaukei Land? Put another way, are those rights of the freehold landowner more sacrosanct in this country than the rights of iTaukei land-owning units? Economic returns? The higher economic returns to land- owners are, as of now, speculation yet to be realised. We do recall though that this was the same reason given for the amendment of the iTaukei Land Trust Act that introduced the equal distribution policy of lease money in 2010.
A recent empirical study by one of us, in a major tourism locality in the country, showed that the envisaged economic returns of that policy have not come to pass. In fact, due to the individualised reduced amount, each landowner is getting sometimes as little as $30 and most of that money goes into consumption. It would be really interesting to see the number of real estate developments, and related projects, owned by land-owning units that have materialised after the policy was introduced – development that, under the old system of distribution, came about mainly because of the way large amounts of money could easily be raised for collective investments.
Amending the legal provisions of the iTaukei Land Trust Act, without any widespread consultation will, justifiably, always cause more anxieties in the minds of the native landowners. This is not good in a politically polarised environment like Fiji. The tension that is beginning to be racked up by the discourse on this new amendment to the Act by both proponents and detractors alike will just unravel whatever good this government has done in nation-building.
Lastly, we would like to point out that the moral implications of the way Bill 17 was introduced, justified and enacted into law is troubling. At best, it reeks of bad faith on the part of Government in its dealings with indigenous land owners. Indeed, the Government seems deter- mined to retain the surface trappings of a democracy without necessarily legitimising its decision in the eyes of its own electorate on a matter as important as this.
The refrain that the common people who dared to oppose this do not understand the administrative nature of the problem of leases in Fiji is quite funny in a way. It brings up troubling questions about the nature of our government and those who have been entrusted to lead us. To put the new amendment into terms that the layman can easily relate to, it seems that this Government has, by the power we have entrusted it with, entered our respective compounds.
While it is assuring us that it will never steal anything from us, it is also neverthe- less cutting a few holes in our fences so that traders can come and trade with us in the comfort of our own homes without us needing to open our gates for them! The question then becomes: whose inter- ests is this Government representing in so doing?
SEVANAIA SAKAI and TUI RAKUITA teach at the University of the South Pacific.
The views expressed in this article are not necessarily those of their employer or The Fiji Times.
