Maybe it’s an “only in Fiji moment”.
Where else could a budget be presented to Parliament in the middle of a raging pandemic with thousands of people infected by COVID, tens of thousands more at risk, hospitals – and now, morgues, overwhelmed – and the Economy Minister refuses to talk about the problem?
The budget debate is about to start and no doubt there will be plenty of talk about that. But another issue has now quietly crept to the surface – an amendment to the iTaukei Land Trust Board Act on which the Opposition SODELPA party has issued a strong statement.
It is just one more example, in my view, of how our government rushes around, looking for things to change without thinking of the deeper implications, without consulting – and needlessly creating anger. But it also goes deeper than this. It exposes the weakness- es of the 2013 Constitution on issues concerning indigenous people and their land. This is hardly the time, you might say, to be talking about this. And perhaps, I might answer, this is hardly the time for the Government to be doing anything like this. What’s the issue?
In the past two or three Budgets the Government has be- come obsessed with Fiji’s poor international rankings as a place to do business. So, after years of saying that it’s everybody else’s fault, they are now a bit like crazed sailors trying to lighten the load on a sinking ship.
They are throwing regulations overboard – business licencing abolished, foreign investment rules changed (well, sort of), stamp duty removed, and so on. Another cause for complaint (the Government says) is how long it takes public bodies – specifically the Department of Lands (for State leases) and the iTaukei Land Trust Board (for iTaukei leases) – to grant consents for mortgages. This is mostly an issue for land developers, bankers and their lawyers.
Those of us who own houses on TLTB or State Land may face this issue once or twice in our lives when we buy our houses or borrow money against them. Economy Minister Aiyaz Sayed-Khaiyum said there was a “huge backlog” of mortgage applications. He said there had been “frequent complaints from the public on these delays with the Lands Department and TLTB”.
“These are simply not acceptable and a lot of these are very paper-driven,” he said. “We are therefore amending the State Lands Act and the iTaukei Land Trust Act to ensure that written consent is no longer required for a mortgage, charge, pledge or caveat for any state or iTaukei lease to be dealt with by any court of law or under provisions of any court of law.” This sweeping statement is not accurate for a number of reasons.
The first of these is that the consent requirements for State Land and iTaukei land are actually different. The legal detail on this is too long (and for most of us too boring) to talk about here. And for those of us who deal with these things daily, it is not necessarily accurate. In my experience the TLTB, certainly in the last few years, has sharpened up its act. It turns around most of these consents within days.
The Department of Lands – well, unfortunately, that’s an- other story. The aim of this law change appears to be to speed things up. And that is not necessarily a bad thing – or even an offensive one.
But as usual (and for our current Government this is very usual) when you try to do it yourself, don’t consult and don’t check with the people who are affected by the law, things blow up in your face. Should it be a big deal? What the Government says it wants to do should not be (in my view) a big deal. If TLTB grants me a lease to build a house (or to a company to build a hotel), it is because TLTB has decided (in consultation with the landowners, on which TLTB is usu- ally diligent) that the land may be given to someone else for a long time – up to 99 years.
Often, then the tenant will take the lease to a bank. The tenant will say “please lend me money to build on my land. In return, I will give you a mortgage – that is, if I don’t repay you, you have the legal right to sell the lease to someone else and get your money back that way”.
The TLTB Act requires anyone who wishes to mortgage their lease to get TLTB’s permission first. There may be good reason for this – TLTB may want to control who ends up with the land if the mortgage goes bad.
But TLTB always has the legal right to approve a trans- fer of a lease to someone else. So there’s an argument that TLTB has complete control of the situation anyway (there are some legal wrinkles with this argument but again, too long and boring for here). So (you could argue) whether or not a bank takes a mortgage over the lease or not doesn’t really matter. The land has been leased anyway. The mortgage only affects the lease.
It doesn’t affect the land itself. No lease, no mortgage. And it speeds things up for business and investment, which is good for everybody – more investment, more jobs, etc. Not everyone will agree with the argument I have just made (I’m not sure if I do). But that isn’t really the point.
The problem is that the law change goes much wider than this. Poor thinking, poor legal drafting, and no consultation has created a problem where there wasn’t one. What does the new law do? The new law says: “TLTB leases can be mortgaged with- out TLTB consent”.
But it also tells the TLTB: “If anyone applies to do any- thing with their lease – transfer it or sub-lease it, etc – TLTB must just approve that application. TLTB can only refuse if the lessee has breached the lease or breached the law”.
So the law has moved beyond mortgages now. It is tell- ing TLTB what to do with transfers and sub-leases of TLTB leases. Ironically, it means that TLTB’s rights are weaker than landlords of freehold land usually have. Typically, in any commercial lease of land, the tenant can’t just say to the landlord “I’m giving this lease to some- body else now”. The tenant must get the landlord’s permis- sion first.
The landlord has a discretion. The landlord can say yes or no. It is up to the landlord. The proposed law change takes this exact same discretion away from TLTB.
TLTB can only refuse to approve a trans- fer or sub-lease if the lease has been breached or some other law will be broken. But there might be other reasons why TLTB does not want to approve a transfer or sub-lease. It might believe the new transferee hasn’t got money to pay the rent.
It may not like the reputation of the transferee. That is why, typically, all landlords have discretion over what happens to their leased land. So, why take this discretion away from TLTB? The deeper issue But behind these technicalities are deeper and more difficult political issues associated with indigenous rights, the control of indigenous land and the rights of indigenous people to control what happens to their land.
In every constitution before the 2013 one (that is, the one that brought us “true democracy”, eh?) special legal rules applied to laws concerning indigenous people. In the 1997 Constitution these laws included the iTaukei Affairs Act, the TLTB Act, the iTaukei Lands Act and laws concerning the Rotuman and Banaban people.
Under previous constitutions, special majorities of Parliament were needed to change anything in these laws. These majorities required the representatives of indigenous people specifically to support those law changes. And in every constitution before 2013, we have had a Sen- ate. And in the Senate there have been rules requiring a specific majority vote by specific representatives of indigenous people. The 2013 Constitution was imposed on us, with no Senate. Some people warned about the dangers of having no “house of review”.
Fiji had previously always had an upper house (as countries such as the UK, US and Australia still do).
Fiji senators were appointed, not elected. The thinking behind that was that the Senate could put a “brake” on the hyper-political behavior of elected representatives in the chamber below. Of course, with no Senate, all of that is gone now. And we have now seen what happens. In the past three years nearly every law is passed instantly, under urgency – the notorious “Standing Order 51” – with no proper debate or consideration.
The change to the TLTB Act is supposed to be only about making an investment process more efficient. But now it gives the critics the chance to say: “We warned that land law changes could be made instantly. And here we are”.
This has the potential to blow up into a deeply controversial political issue. And for what? I’m reminded of how a soldier once explained to me the first rule of peacekeeping: “If the problem is big, make it small. If the problem is small, keep it small.”
This law change does the exact opposite. It makes a small problem big. And, as is usually the case, it is incompetent leadership – poor planning, thinking you have all the answers, refusing to consult others – that is at the root of this.
And if nothing else, before you rush into silly law changes, why not consult properly – and show people some respect?
RICHARD NAIDU is a Suva lawyer. He’s not so sure about our “true democracy”. The views in this article are not necessarily those of The Fiji Times.
