"In his politically-motivated analysis written in a pseudo-academic manner, Kotobalavu purports to argue that landowners’ protection under the Constitution is undermined because of the Decree. Even a first year law student would be able to tell that the Constitution is the supreme law of the land and all other laws are subservient to it.
If there is a law that is contrary to the Constitution, then that law would either need to be amended or repealed." - Aiyaz Sayed Khaiyum
"J[i]oji Kotobalavu (“Kotobalavu”) wants to show that the rights and ownership of iTaukei lands by the customary owners are not safe or protected under our Constitution (see http://www.fijileaks.com/home/fact-and-fiction-about-i-taukei-land-ownership-kotobalavu-responds-to-fiji-suns-simplistic-and-subjective-conclusion-that-native-land-is-safe-under-baikai-constitution-of-2013)
This is farthest from the truth and falls into the same category of misrepresentations and untruths currently being spread by some commentators and politicians to mislead members of the public. Below is a brief analysis of Kotobalavu’s article vis-a-vis the law and facts.
Firstly, Kotobalavu tries to read section 28 of the Constitution in isolation. Section 28, which expressly states that ownership of all iTaukei land shall remain with the customary owners and shall never be permanently alienated, is not the only section that provides constitutional protection to iTaukei landowners.
Kotobalavu fails to take note of section 29(4) of the Constitution which provides that – “Parliament and Cabinet, through legislative and other measures, must ensure that all land leases and land tenancies provide a fair and equitable return to the landowners …”
This section makes it mandatory for Parliament and Cabinet to ensure, through legislative and other measures, that landowners receive a fair and equitable return from the lease of their lands. He also conveniently ignores section 30 of the Constitution which expressly states the landowners are entitled to receive a fair share of royalties for the extraction of minerals from their land or seabed. Kotobalavu also fails to acknowledge that section 28(2) of the Constitution clearly states that any iTaukei land which is acquired by the State for a public purpose must be returned to the iTaukei landowners if the land is no longer required by the State for that purpose. This section, together with the amendments made by the Bainimarama Government to the State Lands Act, will now prevent iTaukei lands from being converted into freehold land or being alienated. This is exactly what was done by the SVT in the 1990s and the SDL in 2006 when they surreptitiously connived to permanently alienate iTaukei land and have it converted to freehold land.
Interestingly, Kotobalavu fails to mention that during both terms of the SVT and SDL governments, he was a senior civil servant and indeed he was the Permanent secretary in the Prime Minister’s Office – the chief advisor to Qarase and his Cabinet on policies, at the time when Qarase and his Cabinet connived to permanently deprive the iTaukei landowners at Momi of their customary land. None of the previous constitutions provided the protections to the landowners which are now contained in the Constitution. In fact, these protections are now for the first time entrenched in the Bill of the Rights chapter of the Constitution. Indeed, the much harped about 1990 Constitution and 1997 Constitution which contained the now much maligned entrenched provisions allowed this conversion of iTaukei lands into freehold to take place.
Rather than properly highlighting the rights and protections of the iTaukei landowners which are safeguarded in the Constitution, Kotobalavu misleads and misinforms with his mistaken and selective references to the Land Use Decree 2010 and the Regulations made thereunder (“Decree”). In his politically-motivated analysis written in a pseudo-academic manner, Kotobalavu purports to argue that landowners’ protection under the Constitution is undermined because of the Decree. Even a first year law student would be able to tell that the Constitution is the supreme law of the land and all other laws are subservient to it. If there is a law that is contrary to the Constitution, then that law would either need to be amended or repealed.
His selective references to the rights and protections safeguarded in the Constitution, and his omission of the key provisions of the Decree shows a complete disregard of the stated objectives of the Decree. He makes reference to previous cases where iTaukei landowners have instituted proceedings in Court and challenged TLTB. Such a simple-minded comparison with previous cases involving TLTB, together with his omission of pertinent sections of the Decree shows that Kotobalavu does not understand the correct legal principles and/or does not want to understand them for the purposes of his own agenda.
Kotobalavu has quoted section 11 of the Decree. But he has failed to quote other pertinent sections of the Decree. Section 3 of the Decree, which is the first substantive section, states that principal objective of the Decree is to ensure that iTaukei land is utilised “in a manner that is in the best interests of the iTaukei landowners”. By not citing this section, Kotobalavu wants to mislead the reader to believe that the interests of the iTaukei landowners will in some way be subservient to the economic interests.
Section 5 of the Decree goes further to state that the ownership of any iTaukei land designated under the Decree shall always remain with the iTaukei owners. This section was not cited by Kotobalavu in his “analysis”.
In addition, section 11 of the Decree explicitly provides that any lease issued over an iTaukei land must at all times take into consideration the best interests of the iTaukei landowners. He further fails to mention that the Decree expressly requires that a minimum of 60 per cent of the members of the landowning unit MUST provide their consent before any iTaukei land can be designated under the Decree.
No land can ever be designated by the Prime Minister until and unless 60 per cent of the iTaukei landowning unit members provide their consent. In his attempt to undermine the benefits of the Decree, Kotobalavu conveniently fails to mention that under TLTB leasing regime which hitherto has been the only manner in which iTaukei land could be leased, TLTB is only required to get majority consent for lease of any reserved land. For all other lands which are not reserved, TLTB only undertakes consultations with the landowners. TLTB is not required to obtain majority consent of the landowners for leasing their lands. The extent of the consultation depends on TLTB. Any decision to lease, and who to lease to, is then made by TLTB.
Indeed, section 14(6)(b) of the iTaukei Lands Trust Act states that “notwithstanding anything contained in any other sections of the Act, a lease may be granted with or without the consent of the iTaukei owners, whether the land is inside or outside a iTaukei reserve, and a lease may be for such purposes and subject to such terms and conditions as the Board thinks fit.”
Any person comparing the two leasing regimes, will clearly note that under the Decree, it is the landowning unit that has the complete say on whether the land will be designated under the Decree. At least 60 per cent of the members of the landowning unit must clearly provide their consent.
The Decree is much more consultative with the landowners, unlike the rather draconian procedures with respect to TLTB, which have been in place since the colonial days, and no Government has sought to modernise these laws to provide for better consultation with the iTaukei landowners. These also include post-1987 and post-2000 Governments, which claimed to serve the best interests of iTaukei landowners, yet did nothing to provide for greater involvement of the iTaukei landowners with respect to the use of their lands.
Kotobalavu completely ignores the fact that under the Decree, each landowning unit elects up to five trustees and also prepare a Deed of Trust for their duties and functions. The Decree requires the Director of Lands to undertake a proper professional survey of the land, acting at all times in the best interests of the iTaukei landowners.
The Decree also sets out a clear procedure for the assessment of fair market rent, which will be wholly paid to the landowners. Kotobalavu fails to take cognisance of the fact that in the assessment of the rent, the trustees of the landowning unit have the right to disagree with the assessment. If parties are unable to reach agreement on the fair market rent, the trustees of the iTaukei landowning unit have the express right to refer the assessment to the Prime Minister, who then appoints an independent expert valuer to undertake an independent assessment of the fair market rent.
The form of the lease issued over any designated land is also expressly provided in the Decree. Any person reading the terms and conditions of the leases will note that the best interests of the iTaukei landowners are taken into consideration at all times, who also have a say, not just in the fair market rent of the land but also in the terms and conditions under which the lease is issued, the use to which the land will be put to and the person/company to whom the lease will be issued to.
These provisions and policies ensure that the interests of the iTaukei landowners will always be the main consideration with respect to any lease issued under the Decree. Given the above, by excluding the jurisdiction of the courts from challenging the designation of land under the Decree, the Decree protects the majority (60 per cent) voice of the iTaukei landowners and the trustees of the iTaukei landowning unit, who have the right to be heard on matters such as the designation of the land or the fair market rent payable on their land. The Decree prevents any disgruntled or politically-motivated individual or minority landowner in bringing court cases against the decisions made by the majority of the members of the landowning unit, and thereby frustrating the majority of the landowners of the full enjoyment of the benefits from the lease of their land.
Kotobalavu should note that the protections and safeguards provided in the Decree to the iTaukei landowners are much more than what is provided to the iTaukei landowners under the TLTB laws and policies. For this reason, it is not surprising that so many iTaukei landowners have been frustrated with the management of their lands by TLTB. Indeed, leases have been issued without proper consent. The landowners have been at times ignored on the assessment of rent, and the use to which the land has been put to. The notoriety of the TLTB bureaucracy has irritated many landowners and other stakeholders. Under the chairmanship of the Prime Minister, many of these long outstanding issues and archaic provisions are being addressed. The Decree has provided the optimum ability to address these issues firsthand.
For these reasons, so many landowning units are freely designating or considering to designate their lands under the Decree. Not a single landowning unit has had any issues with the designation of their lands.
These landowning units are now enjoying full market rents for the lease of their lands. Every single cent of the money collected in rent is paid to the iTaukei landowning unit, unlike TLTB which takes a percentage as poundage.
If Kotobalavu properly reads the provisions of the Decrees in its entirety and in their proper context and without a jaundiced approach, even he will not be able to deny the benefits of the Decree for the iTaukei landowners.
Kotobalavu’s article, like the commentaries of a few others in our society including some politicians, cannot be taken seriously because they are written or made with a malicious intent, have an ulterior agenda and lacks intellectual honesty. In this instance, Kotobalavu’s article is designed to mislead the iTaukei landowners in particular and the Fijian population in general."