by A STUDY OF CUSTOMARY METHODS DEALING WITH CUSTOMARYDerek Lauta. G. LAND Futaiasi DISPUTES IN MALAITA, SOLOMON ISLANDS by Derek Lauta G Futaiasi A supervised research project submitted in partial fulfilment of the requirements for the degree of Master of Law Copyright © 2011 by Derek L G Futaiasi School of Law Faculty of Arts and Law The University of the South Pacific December 2011 DEDICATION I dedicate this supervised research project to my late aunties; Rose Bufafi, Lisa Gwaena and Filustus Abuiri because they believed that education reveal pathways and bridges to self-fulfilment and advancement. 1 ACKNOWLEDGMENT This research paper is a semester’s work and several people need to be acknowledged. First, my heartfelt gratitude extends to the University of the South Pacific (USP) which gave me an opportunity from July 2009 to December 2010, under the USP Graduate Assistant Scholarship to undergo the Master of Laws Programme as a full time student at USP Law School, Emalus Campus, Port Vila, Vanuatu. Deep-felt gratitude also extends to my supervisor and academic mentor – Emeritus Professor Donald Edgar Paterson of the USP School of Law, for his time and wonderful supervision. I have gained and learnt so much from his insights. Third, many thanks extend to the following people; Associate Professor David Akin of the University of Michigan, Joseph Foukona and Paul Mae – lecturers at the USP School of Law, David Lidimani and Professor Howard Van Trease for their assistance and encouragement. Much sincere gratitude extends to Felix Kabini Laumae for being a true wantok in Vanuatu. Without him, the revision of this supervised research project in 2011 (August to October) is impossible. Fourth, my thanks extend to those people who I had the chance to talk with them and learnt from their experience and knowledge about customary land disputes, chiefs and traditional leaders in Malaita, particularly, Robert Kofuria, Vincent Misitana, Duddley Fugui, Jackson Lea’afuna, Jeffery Ini, Rinaldo Talo and Leonard Maenu’u. Many thanks extend to David Alpheus – Senior Magistrate in Auki for allowing me to use the Auki Magistrate conference room to conduct my interviews. To those who helped me in one way or another but I am unable to mention their names, tagio baita asiana! ii Lastly, I owe my family, particularly my mum – Gwenneth Lauta-Tadoe, for believing in me that I can make it to this far. Without the kind help, support and encouragement of the above people, this paper would be much poorer. iii ABSTRACT In Malaita one of the provinces in Solomon Islands, during traditional times, the most important traditional decision making mechanisms that dealt with disputes were traditional priest, big-man, a warrior, and chiefs. In contemporary Malaita their roles in dispute settlement had been affected due to foreign influences such as Christianity and the protectorate government. However, chiefs and traditional leaders which are often referred to as chiefs’ settlement or houses of chiefs, are given recognition in 1985 by Parliament to deal with customary land disputes before such is referred to the formal courts. The legal recognition of chiefs or traditional leaders is timely against the increasing customary land disputes due to factors such as lack of clear records, migration, confusion over inheritance and ownership, lack of consultation about land transaction, population pressure and economic activities on customary land. The conduct of proceedings by chiefs and traditional leaders are not regulated by an Act of Parliament. The ways in which the houses of chiefs deal with customary land disputes are by way of negotiation and mediation or by way of using court like procedures to determine an outcome of a customary land dispute. The latter is the main method when houses of chiefs deal with customary land cases. However, in some instances, before customary land disputes go to the houses of chiefs, if that dispute is between people of the same clan their leaders assisted by religious leaders, usually settled the matter between the clan members. In Malaita, though there are advantages of custom dispute settlement such as chiefs are knowledgeable in custom, people feel that they own the system, the system is cheap, the system entails a common understanding between parties which reflect the interest of parties and traditional leaders are independent, there are also challenges facing custom dispute settlement. Some of these challenges include chiefs adopt court like procedures, participation of chiefs from other areas, questions as to validity of chief’s position, conflicting decisions of chiefs, lack of government support, lack of independence of chiefs, lack of fair hearing and decisions are dominated by men. Therefore, much needs to be done to invigorate the work of the houses of chiefs or chiefs’ settlement as recognised by the 1985 amendment of the Local Court Act. Some iv of the most important proposals are the need for government support in terms of remuneration for those who settle customary land disputes at the house of chiefs and the need to introduce and devise a program to train chiefs on legal concepts such as natural justice and relevant human rights issues. The need for a clear constitutional recognition of chiefs and traditional leaders as an important body to deal with customary land disputes is very important to ensure proper legitimacy. Apart from these proposed reforms; the inclusion of the chiefs, traditional leaders and the use of custom to deal with disputes as envisaged by the Tribal Land Dispute Resolution Panel Bill 2008 is a step in the direction in the resolution of customary land dispute. However, there is a need to address the challenges and problems inherent in Tribal Land Dispute Resolution Panels Bill 2008 in order to ensure it is developed into a proper Act of Parliament. v LIST OF ABBREVIATION SRP – Supervised Research Project TLDRPB – Tribal Land Dispute Resolution Panels Bills 2008 TLDRPF - Tribal Lands Dispute Resolution Panels Fund TLDR Panel – Tribal Land Dispute Resolution Panel vi LIST OF FIGURES – MAPS and PHOTOS Figure 1: A girl from Sikaiana – a Polynesian outliers in Malaita Province 15 Figure 2: Photo of a girl from North Malaita, Malaita Province 15 Figure 3: Map of Malaita - Malaitan dialect areas 16 Figure 4: Picture of Andrew Nori 63 Figure 5: Provincial Wards’ boundaries in Malaita Province 64 Figure 6: Tai house of chiefs, Baefua, North Malaita 66 Figure 7: Robert Kofuria and Derek Futaiasi, Baefua, North Malaita 70 Figure 8: ’Are’are Wards and Traditional Chiefly systems 74 vii TABLE OF CONTENTS Acknowledgment ii Abstract iv List of Abbreviation vi List of Figures vii CHAPTER 1 INTRODUCTION 1 1.1 Overview 1 1.2 Definitions 1 1.2.1 Definition of Custom 1 1.2.2 Customary Land 2 1.2.3 Customary Land Disputes 3 1.3 Reasons For Topic 3 1.3.1 Lack of Comprehensive Research 3 1.3.2 Increase of Customary Land Disputes 4 1.4 Courts Dealing with Customary Land Disputes 4 1.5 Chiefs and Traditional Leaders 5 1.6 Scope of the SRP 6 CHAPTER 2 METHODOLOGY 8 2.1 Stage 1: Formulation of Framework and Structure of Topics to be Considered 8 2.2 Stage 2: Collection of Information 9 2.3 Stage 3: Analysis of Materials and Review of Information Needed 11 2.4 Stage 4: Writing Stage 12 CHAPTER 3 BRIEF OVERVEIW OF MALAITA 13 3.1 Overview 13 3.2 Malaita: Name, Land Size and Population 13 3.3 Classification and Dialects 14 3.4 Religious and Socio-political Organisation 17 viii 3.5 Subsistence Living 19 3.6 Marriage 20 3.7 Land Ownership 21 3.8 Conclusion 22 CHAPTER 4 TRADITIONAL DECISION-MAKING MECHANISMS 23 4.1 Overview 23 4.2 Traditional Priest 23 4.3 The Big-man 25 4.4 The Warrior 28 4.5 Hereditary Chiefs: Maramasike and ’Are’are 32 4.6 Concluding Remarks 33 CHAPTER 5 CAUSES OF CUSTOMARY LAND DISPUTES IN MALAITA 35 5.1 General Overview 35 5.2 Categories of Customary Land Disputes 35 5.3 Causes of Customary Land Disputes: Brief Overview 36 5.3.1 Lack of Clear Records 36 5.3.2 Migration 37 5.3.3 Confusion over Inheritance and Ownership 38 5.3.4 Lack of Consultation about Land Transaction 40 5.3.5 Population Pressure 41 5.3.6 Economic Activities on Customary Land 42 5.4 Concluding Remarks 43 CHAPTER 6 CUSTOMARY LAND DISPUTE DETERMINATION AND SETTLEMENT IN CUSTOM: AN OVERVEIW OF THE PROCESS 45 6.1 Overview 45 6.2 Background of Process in Custom 46 6.3 Negotiation and Mediation 46 6.4 Compensation and Reconciliation 48 6.5 Intra-Tribal: Tribal/Clan Elders, Big-men and Church Leaders 51 ix 6.6 Panel of Chiefs/Traditional Leaders: Inter-Tribal 55 6.6.1 Overview 55 6.6.2 Local Court Act: A Brief Description of its Evolution 55 6.6.3 Jurisdiction of Chiefs/Traditional Leaders 57 6.6.4 Composition of houses of chiefs/Panels 62 6.6.5 Houses of Chiefs in Malaita: An Overview 62 6.6.6 How are Chiefs or Traditional Leaders Chosen? 68 A Overview 68 B Small Malaita – Maramasike 71 C ’Are’are Chiefs 72 D Paramount Chiefs – Kwara’ae and Kwaio 74 6.6.7 How Are Customary Land Disputes Resolved By Chiefs and Traditional Leaders? 77 A Conduct of Proceedings 77 B Mediation 82 C Decision Making/Determination 84 6.7 Tribal and Individual Violence 86 6.7.1 Overview 86 6.7.2 Tribal Violence in Traditional Times 86 6.7.3 Tribal Violence in Contemporary Times 87 6.8 Concluding Remarks 88 CHAPTER 7 ADVANTAGES AND CHALLENGES FACING CUSTOM DISPUTE DETERMINATION AND SETTLEMENT: AN ASSESSMENT 91 7.1 Overview 91 7.2 Advantages of Contemporary Custom Settlement 91 7.2.1 Chiefs and Traditional Leaders are Knowledgeable in Custom 91 7.2.2 People Feel that