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PASSAGE OF CHANGE PASSAGE OF CHANGE LAW, SOCIETY AND GOVERNANCE IN THE PACIFIC edited by Anita Jowitt and Dr Tess Newton Cain Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/passage_change _citation.html National Library of Australia Cataloguing-in-Publication Entry Title: Passage of change : law, society and governance in the Pacific / edited by Anita Jowitt and Tess Newton Cain. ISBN: 9781921666889 (pbk.) 9781921666896 (eBook) Notes: Includes bibliographical references. Subjects: Jurisprudence--Pacific Area. Customary law--Pacific Area. Pacific Area--Politics and government. Pacific Area--Social conditions. Other Authors/Contributors: Jowitt, Anita. Cain, Tess Newton. Dewey Number: 340.5295 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by Emily Brissenden Printed by Griffin Press This edition © 2010 ANU E Press First edition © 2003 Pandanus Books CONTENTS Acknowledgments vii Table of Abbreviations viii Table of Cases x Table of International Conventions xiii Table of Legislation xiv Notes on Contributors xvii INTRODUCTION Anita Jowitt and Tess Newton-Cain 1 SECTION 1: THE CONTEXT OF CHANGE 1. Modernisation and Development in the South Pacific Vijay Naidu 7 SECTION 2: CORRUPTION 2. Corruption Robert Hughes 35 3. Governance, Legitimacy and the Rule of Law in the South Pacific Graham Hassall 51 4. The Vanuatu Ombudsman Edward R. Hill 71 SECTION 3: CUSTOMARY LAW 5. Custom Then and Now: The Changing Melanesian Family Jean G. Zorn 95 6. Issues in Contemporary Customary Law: Women and the Law Jean G. Zorn 125 7. Rites, Whites and Might: A Critique of the Effect of the Revival of Customary Law upon the Autonomy of Indigenous Women Susan Bothmann 143 v PASSAGE OF CHANGE 8. The Incorporation of Customary Law & Principle into Sentencing Decisions in the South Pacific Region Tess Newton Cain 165 SECTION 4: HUMAN RIGHTS 9. The Notion of Human Rights Anita Jowitt 185 10. Human Rights vs. Custom in the Pacific: Struggle, Adaptation, or Game? Ian Fraser 199 11. Customary Family Law and Gender Discrimination in Papua New Guinea Owen Jessep 215 SECTION 5: NATURAL RESOURCE ISSUES 12. Environmental Law Issues in the South Pacific and the Quest for Sustainable Development and Good Governance Laurence Cordonnery 233 13. Legal Developments in the Conservation and Management of Highly Migratory and Straddling Fish Stocks in the Western and Central Pacific Ocean Laurence Cordonnery 251 SECTION 6: REBUILDING NATION STATES 14. Building Bridges – Law and Justice Reform in Papua New Guinea Sinclair Dinnen 277 15. Constitutions as Limits on the State in Melanesia: Comparative Perspectives on Constitutionalism, Participation and Civil Society Anthony Regan 305 16. Legal Pluralism and the Problem of Identity Robert Hughes 329 INDEX 353 vi ACKNOWLEDGEMENTS The editors wish to thank all of the authors who have contributed to this collection for their ongoing commitment, patience and cheerful acceptance of editorial suggestions. Thanks also go to Ian Templeman, Emily Brissenden and the staff at Pandanus Books who embraced the project with warmth and enthusiasm. Tess would like to thank Anita for having the idea in the first place and Anita would like to thank Tess for her invaluable input on the sbject of capital letters! The enduring accommodation and understanding of Grant and Bernie are duly acknowledged. vii TABLE OF ABBREVIATIONS AusAID: Australian Agency for International Development BCA: Bougainville Constituent Assembly BLV: Bose Levu Vakavanua (Fiji) BRG: Bougainville Reconciliation Government CARMA: Community Area Resource Management Approach (Vanuatu) CCAMLR: Convention on the Conservation of Antarctic Marine Living Resources CDC: Constitutional Development Commission (PNG) CEDAW: Convention on the Elimination of all forms of Discrimination Against Women CLS: Critical Legal Studies CPC: Constitutional Planning Committee (PNG) CPC: Criminal Procedure Code (Vanuatu) CPLCC: Central Polynesian Land and Commercial Company CRC: United Nations Convention on the Rights of the Child CRP: Comprehensive Reform Programme (Vanuatu) CRT: Critical Race Theory CS: Correctional Service (PNG) DAP: Democratic Alliance Party (Cook Islands) DWFN: Distant Water Fishing Nation ECHR: European Convention on Human Rights EEZ: Exclusive Economic Zone EIA: Environmental Impact Assessment FFA: Forum Fisheries Agency FFC: Forum Fishery Committee FSM: Federated States of Micronesia IATTC: Inter American Tropical Tuna Commission IFF: Isantabu Freedom Fighters (Solomon Islands) INA: Institute for National Affairs (PNG) IUCN: International Union for the Conservation of Nature LMS: London Missionary Society LRC: Law Reform Commission (PNG) LUPO: Land Use Planning Office (Vanuatu) MHLC: Multilateral High Level Conference MIRAB: Migration, Remittances Aid and Bureaucracy viii TABLE OF ABBREVIATIONS MP: Member of Parliament MTCs: Minimum Terms and Conditions MSY: Maximum Sustainable Yield NAP: National Alliance Party (Cook Islands) NEC: National Executive Council (Papua New Guinea) NGDP: National Goals and Directive Principles (Papua New Guinea) NGOs: Non-Governmental Organisations NLTB: Native Land Trust Board (Fiji) NM: Nautical Miles PIC: Pacific Island Country PILOM: Pacific Islands Law Officers’ Meeting PNA: Peoples’ National Alliance (PNG) PNG: Papua New Guinea SI: Solomon Islands SPC: Secretariat of the Pacific Community (Formerly the South Pacific Commission) SPREP: South Pacific Regional Environment Programme SVT: Soqosoqo ni Vakavulewa ni Taukei (Fiji) TAC: Total Allowable Catch UDT: Underdevelopment Theories UN: United Nations UNCED: United Nations Conference on Environment and Development UNCHR: United Nations Centre for Human Rights UNCLOS: United Nations Convention on the Law of the Sea UNDP: United Nations Development Programme UK: United Kingdom US(A): United States (of America) USP: University of the South Pacific VANRIS: Vanuatu Resources Information System VMS: Vessel Monitoring System VNPF: Vanuatu National Provident Fund WCPO: Western and Central Pacific Ocean ix TABLE OF CASES Alisae v Salaka [1985/86] SILR 31. 38 Application of Thesia Maip; In the Matter of the Constitution, s 42(5) [1991] PNGLR 80.. 96, 99ff, 110 Banga v Waiwo, Unreported, Supreme Court of the Republic of Vanuatu, Civ App 1/96, 17th June 1996. 164 Bore Konia v Daniel Dosinga and the State of PNG (1989) N 745. 218 Cooper v Slade (1858) 6 H.L.C. 746.. 38 Donoghue v Stevenson [1932] AC 562. 188 Eernale Cagiliba v R, Unreported, Supreme Court of Fiji Islands (Appellate Jurisdiction), Criminal Appeal No 30 of 1977, 13th May 1977. 174 Haiveta v Wingti and Ors (no.1) [1994] PNGLR 160. 313 Haiveta v Wingti and Ors (no.3) [1994] PNGLR 197. 326 Hala v R [1992] Tonga LR 7.. 172 Helen Jack v Karani and Papua New Guinea [1992] PNGLR 391.. 204, 212 Henry Aisi v Malaita Hoala [1981] PNGLR 199.. 142 In re Moresby Parliamentary Election No. 2 [1977] PNGLR 448. 48–49 John Noel and Obed Toto, Unreported, Supreme Court of the Republic of Vanuatu, Civil Case No 18 of 1994 19th April, 1995. 117, 164 Kaliopa v Silao, Unreported, High Court of American Samoa: Land & Title Division, 1983. 140 Komaip Trading v Wauglo and Papua New Guinea [1995] PNGLR 165. 204, 212 Le Tagaloa Pita v Attorney-General, Unreported, Court of Appeal of Western Samoa CA 7/95, December 1995.. 204 Manunivavalagi Dalituicama Korovulasvula v Public Service Commission, Unreported, Fiji Islands Court of Appeal, Civil Appeal No 6/94. 40 McMoore & ors v Popoali’i & ors, Unreported, High Court of American Samoa, Land & Title Division, LT No. 20–88, 1989. 140 x TABLE OF CASES Menyamya v Open Parliamentary Election [1977] PNGLR 302. 48 Molu v Molu No. 1, Unreported, Supreme Court of the Republic of Vanuatu, Civil Case No. 130 of 1996, Matrimonial Case No. 2 of 1996, 21st April 1998. 122 Molu v Molu No. 2, Unreported, Supreme Court of the Republic of Vanuatu, Civil Case No. 30 of 1996, Matrimonial Case No. 130 of 1996, 15th May 1998. 96, 107ff Mose v Masame [1930–49] WSLR 140. 140 Ombudsman v Fr. Gerard Leymang, Unreported, Supreme Court of the Republic of Vanuatu, Civil Case No. 3 of 1997, 25 August 1997. 77 Ombudsman v The Attorney General & anor, Unreported, Supreme Court of the Republic of Vanuatu, Constitutional Case No 114 of 1997, 30 October 1997. 78 Ombudsman v Willie Jimmy, Maxime Carlot Korman et al, Unreported, Supreme Court of the Republic of Vanuatu, Constitutional Case No. 104 of 1997, 4 May 2001. 77 Pandosy Jean Charles v Pascaline Thuha, Unreported, Supreme Court of the Republic of Vanuatu, Matrimonial Case No. 16 of 1996, 10th December 1997. 117 Peter Salemalo v Paul Ren Tari and the Electoral Commission, Unreported, Supreme Court of the Republic of Vanuatu, Election Petition No. 30 of 1998, 3rd July 1998. 155 Prasad v Republic of Fiji [2001] NZAR 21 . 313, 327 Public Prosecutor v Kota, Unreported, Supreme Court of the Republic of Vanuatu, Criminal Case No. 58 of 1993, 31st August 1993. 127ff, 136, 137 Public Prosecutor v Iata Tangitom, Unreported, Supreme Court of the Republic of Vanuatu, CR No. 14 of 1998, 3rd August 1998.. 166, 173 Public Prosecutor v Lissy Kalip, Unreported, Supreme Court of the Republic of Vanuatu, CR No. 54 of 1997, 6th October 1998.. 181 Public Prosecutor v Peter Thomas, Unreported, Supreme Court of the Republic of Vanuatu, CR No. 4 of 1998, 22nd March 1999.. 175 Republic of Fiji v Prasad Unreported, Court of Appeal of Fiji, Civ. App 78/2000S, 1 March 2001 . 313, 327 R. v Carr [1956] 2 All E.R. 979. 38 R v Challoner (1990) 49 A. Crim. R. 370. 39, 40 R. v Loumia [1985/86] SILR 158. 173, 176 R. v Mills (1978) 68 Cr. App. Rep. 154 at 158.. 38 R. v Minor (1992) 79 NTR 1. 177 R v Nath (1994) 74 A. Crim. R 115 at 119.
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