"In his 28 February letter the CEO of CCF makes a number of false insinuations about rights, including the protection of iTaukei land under the Constitution.
In fact, the protection and ownership of iTaukei land has never been more secure. For the first time in Fiji's history, the ownership of iTaukei land is enshrined in the Bill of Rights, which binds the judiciary, the executive, and the legislature and guides all administrative decisions.
To hint otherwise suggests at best a fundamental misunderstanding of the legal principles, and at worst a deliberate attempt to mislead.
Furthermore, the CEO fails to mention that the Bainimarama government strengthened the protection of iTaukei land last year by closing a legal loophole that allowed iTaukei land to be converted to State land and then to Freehold land despite the so-called entrenched provisions of past constitutions.
Through manipulation of this flawed system, the permanent alienation of iTaukei land took place at Momi and Denarau under previous governments.
The CEO's reference to the Monasavu matter is grossly misleading because a similar situation cannot happen under our new Constitution.
Now, the State must pay fair compensation for any iTaukei land acquired for public purpose at acquisition and return the land to its original owners if it is no longer required for that public purpose.
This he fails to mention, like he fails to mention that landowners will now get a fair share of royalties from the mining of minerals. The CEO is sounding more like a politician playing fear politics than the leader of an independent, non-partisan NGO. Perhaps he is gearing up for a political career."
Minister for Justice
"Now, the Prime Minister, Commodore Voreqe Bainimarama, in his speech in Vunisea has issued a statement on the alienation of native and other matters aimed at discrediting the elected Government which I led at the time of the transaction. It is important that the facts relating to the land transaction be stated clearly, so that people may be able to form their own informed opinions on the criticisms leveled against the SDL Government.
The land transaction in question involved the swap or exchange of 68.7 hectares of native land owned by Tokatoka Nasau with freehold land of equivalent value owned by Matapo Limited, the developer of Momi Bay Resort Project.
Upon exchange the native land was to be converted to freehold and the Matapo freehold was to be converted to native land and registered under Tokatoka Nasau. There was no “loss” of native land in the transaction because of the equivalent freehold land and other benefits in exchange.
My information is that the conversion of native land to freehold was completed. But the conversion of freehold to native land has yet to be completed, due to interference by the present Government following the Military Coup on 5th December, 2006.
The transaction was made with the voluntary agreement of the two parties involved, Matapo Limited and Tokatoka Nasau. The NLTB gave its approval to the deal and the Government of the day sanctioned the land swap under the Land Transfer Act. The terms and conditions of the land swap are recorded in an Agreement between the two parties dated 31st May, 2005.
The landowners were obviously satisfied and happy with the benefits they received then, and the benefits they will receive in the future if the project is successful.
Unfortunately for the landowners they have suffered because of the effects of the military coup of 5th December, 2006. The overthrow of a democratically elected Government has effectively “killed” the Momi Bay Resort Project. The Momi Bay Resort development would have been completed by now if there was no illegal take-over of the Government.
Mr. Khaiyum’s often quoted reference to the provisions of the law relating to this transaction is also misleading. As Chief Legal Officer of the Government he should at least be completely honest with his explanation. The transaction was completed within the relevant laws with voluntary participation of all parties involved.
The bottom line is that the landowners, as owners of the land agreed to exchange their asset with a similar asset of equivalent value. It was a voluntary act on their part, and they were satisfied and happy with what they received.
The conversion of native land to freehold land was never the policy of the SDL Government. The Momi Land transaction was an isolated case which all parties concerned approved and came away satisfied with the outcome. The transaction was carried out within the Land Transfer Act and completed in good faith.
Both Commodore Voreqe Bainimarama and Mr. Khaiyum appear confused about the entrenched legislation in the 1997 Constitution relating to native land. The entrenchment of the Native Land Trust Act means that any amendment of that Act would require a higher and more difficult Parliamentary votes for approval. This has protected native land from possible attempts to alienate such land.
It is no secret that the SDL Government would like all native legislation remain entrenched in the Constitution. It is almost certain that the successor to the SDL would like to maintain this as a key policy issue.
The present Government’s draft Constitution does not provide for entrenched native legislation. This means that any amendment to the Native Land Trust Act, for example, would require a simple majority in Parliament. Furthermore, without entrenchment in the Constitution, it will become much easier to alienate native land, the issue that both the Prime Minister and Attorney General appear confused.
There are two precedents for similar land transactions. In the Hyatt Hotel and Denarau development projects there were similar land exchange transactions, both during the SVT Government. In those two cases and in the Momi Bay project the benefits to landowners have been substantial. L. QARASE."
Fiji Times Butt Street SUVA
Aiyaz Khaiyum’s letter in the Fiji Times of 3 March 2014, titled CCF flaws, on indigenous rights under the 2013 constitution cannot go unchallenged. It probably didn’t occur to Aiyaz, before penning his letter, that the 2013 constitution was not the product of the wishes of the people. As such it cannot be said to have any semblance of legitimacy. It is a document that has been foisted on the people by Frank Bainimarama and Aiyaz after they found the Ghai draft constitution to be unpalatable to their (not the peoples) agenda. On protection of native land being more secure than at any other time prior, Aiyaz again tells an unmitigated lie. More importantly, and unlike the current regime as declared unlawful by the Fiji Court of Appeal on 9 April 2009, all other previous governments were duly elected by the people pursuant to a publicly endorsed constitution.
With respect to native land, the truth is that changes to the Native Land Trust Act via Native Land Trust (Amendment) Decree 2010 (Decree No. 32 of 2010) has meant that all 12 appointment to the NLTB is made up of the President, the Prime Minister (as Chairman) and 10 other appointees appointed by the Minister for Fijian Affairs (see Section 3 (1) of amendment decree (supra). What this means, is that that the institution of the Great Council of Chiefs (as trustee of native land under the law) has no say in how matters relating to native land is to be determined. In effect what Aiyaz has done through the amendment to the NLTA is to make board appointments political and in doing so has exposed native land to political machinations, which would pose a grave danger to the previously entrenched provisions affording protection of native land as a valued asset of the indigenous peoples. Such changes to the NLTA are an affront to the right of the indigenous people to have a direct say, vide their representatives, on matters concerning native land. It can in no way, regardless of the hollow rhetoric of Aiyaz, constitute any greater protection on native land.
On matters on entrenched constitutional provisions for changes to native land, Aiyaz again is talking without getting his facts rights. The 2013 constitution has removed all entrenched provisions relating to native land. The only entrenched provision in the 2013 constitution is the immunity section for Frank Bainimarama and military officers and for perpetrators of all other coups (section 158). To add context to my argument, let me show readers what the 1997 and the 2013 constitutions say on native land. The 1997 Constitution, pursuant to section 185 (1) (c) provided for changes to NLTA. Any changes to NLTA would have had to be in accordance with section 185 (k) in that 9 of the 14 nominees of the GCC [as per section 64 (1) (a) of the 1997 Constitution] in the Senate would have had to support any amendment to the NLTA. Section 6 (b) of the 1997 Constitution further provided for native land to be preserved in accordance with Fijian custom whereas the 2013 constitution actually omits all reference to customary law.
The 2013 constitution further ensures that all legislation can be amended by a simple majority. The absence of a Senate, comprising of nominees of the GCC and other groups effectively means that changes to legislation affecting native land and interests and rights of interests of other groups, will not be reviewable by an Upper House. This again represents grave dangers to the preservation of native land and alienates the control of the native land from the traditional and lawful owners (the GCC as trustees for the indigenous peoples) into the political arena where the representations of the indigenous peoples on land has been removed by changes to the native land laws as discussed above. It also removes the right of other affected communities to be represented by their nominated group representatives in the Senate as was the case of our previous three constitutions. Aiyaz must realise that his efforts to justify the 2013 constitution, viz native land, is viewed with scepticism and contempt by many as the people have not sanctioned any of the provisions in the said constitution. He would do well to heed the words of James Madison, the fourth President of the United States, who said: “The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.”