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Permission for Internet Access THE UNIVERSITY OF THE SOUTH PACIFIC LIBRARY Author Statement of Accessibility- Part 2- Permission for Internet Access vcy 1 GS Department/School : Institution/University : Thesis Tltle I Date of completion of requirements for award : / 1. I authorise the University to make this thesis available on the Internet for access by USP authorlsed users. 2. I authorise the University to make this thesis available on the Internet under the International digital theses project Contact Address Q, r ~jkx / Submitted by DAVID B LIDIMANI, LL.B (USP) LL.M (VUW) A thesis submitted in partial fulfillment Of the requirements for the degree of Master of Laws by Thesis University of the South Pacific Faculty of Arts & Law School of Law July 2006 Table of Contents Acknowledgement Statement of Authorship Summary Abbreviations Key words INTRODUCTION I Evolving Coastal Resources Management: An Overview 5 II Butubutu Babata and KMT Systems in Solomon Islands: A Case Study of a Traditional Resource Management Institution 7 One DECENTRALISED GOVERNANCE STRUCTURE & THE LEGAL FRAMEWORK IN SOLOMON ISLANDS: IMPLICATIONS FOR BUTUBUTU BABATA I Overview 18 II Institutional Decentralisation 21 A Tier One – National Parliament 21 B Tier Two – Provincial Assemblies 24 C Tier Three – Area Councils 26 III Alternative Routes for Empowering Butubutu Babata 28 A Direct Intervention of Parliament by virtue of the Constitution or other Appropriate Legislation 28 B Enactment of Ordinance by Provincial Assembly 29 C Area Councils 34 IV Conclusion 35 Two ORGANISATIONAL RESTRUCTURING WITHIN THE NEW BUTUBUTU RESOURCE MANAGEMENT REGIME: AN INTRODUCTION I Overview 41 II The Butubutu Babata Micro-Level Governance ii Structure 45 A Existing Structure of Butubutu Babata 45 1 Tribal Chief 46 2 Elders Council 48 3 Village Committee 50 4 Others 50 B Evaluating the Shortfalls of the Existing Butubutu Structure 51 III Inadequacies of Kastomary Marine Tenure System in Marovo Lagoon 56 IV Making the Choice for a New Legal Entity: General or Special Empowerment? 58 Three BUTUBUTU BABATA DEVELOPMENT TRUST : THE SOLUTION TO CENTRALISING RESOURCE MANAGEMENT? I Overview 63 II Growing Individualisation and a Misconception of the Trusteeship Concept: A Lesson for Butubutu Babata 64 III Proposed Organisational Structure 70 IV Incorporating the Butubutu Trust 72 V The Board of Trustees 74 A Composition of the Board 75 B Appointment through Election 78 C Eligibility to be a Trustee 80 D Tenure of Trustees 82 VI Resource Management Powers and Functions 83 VII Accountability and Transparency within Decision-Making Processes 84 Four TERRITORIAL JURISDICTION FOR MARINE RESOURCE MANAGEMENT I Overview 89 iii II Fencing Coastal Waters of the Pacific: Implications for Butubutu Babata 91 A Boundary Disputes as a Legacy of the Oral Tradition 91 B The Dilemma of Resolving Conflicting Kastomary Evidence 95 III Historical Developments in Boundary Demarcation in Marovo Lagoon 99 IV Demarcating the Boundaries of Butubutu Babata’s Marine Puava 100 V Maritime Zone and the Status of Kastomary Waters in Solomon Islands 103 V Reaching Agreement with Neighbouring Groups 105 VI Outer Limits Beyond Reef Fringes 107 VII Securing and Formalising the Butubutu Boundaries through Registration 110 Five MONITORING AND ENFORCEMENT OF RESOURCE MANAGEMENT LAWS I Overview 115 II The In-situ Management Concept and its Application in Pacific Island Countries 115 III Butubutu Ordinance and Bylaws: The Enforcement Regime 125 A Appointment of Enforcement Officers 125 B Enforcement Powers to Search Arrest Seize Detain and Forfeit 128 C Presumption of Evidence 132 IV Alternative Forms and Degree of Penalties 133 A Punishment through Court Process 133 B Out-of-Court Resolution of Breaches to Butubutu Ordinance and Bylaws 135 C Commission of Offence by Butubutu Members 137 iv V Enforcing Environmental Offences: Establishing Liability through Causation 138 Six MAINTAINING SUSTAINABILITY OF THE BUTUBUTU INITIATIVE THROUGH MOTIVATION AND SELF-SUSTAINING MECHANISMS I A New Direction in Simultaneously Pursuing Socioeconomic Development and Resource Conservation 141 II Butubutu Trust Fund and Related Powers 148 A Fines and Compensation 151 B Fees for Resource Use 153 C Returns from Investments and Other Forms of Revenue 156 III Sustaining the Butubutu Enforcement Regime through Application of the Cost Recovery Principle 157 CONCLUSION 159 APPENDICES Appendix I The Chea Village Community Constitution 1991 & Chea Village Committee Regulations 1991 167 Appendix II The Chea Village Community Bylaws 1991 175 Appendix III Draft Chea Village Community Bylaws 2006 179 Appendix IV Butubutu Babata General Policy Directives on Community Development Foundations 2002 183 Appendix V Butubutu Babata Policies and Plans for the Use and Management of Resources 2003 190 FIGURES Fig.1 Basic Decentralisation Structure of Solomon Islands 28 Fig.2 The Legal Framework for Empowering Butubutu Babata 40 Fig.3 Current Butubutu Babata Organisational Structure 49 Fig.4 Proposed Organisational Structure of Butubutu Babata Development Trust 71 Fig.5 The Resource Management Equation 117 v Fig.6 In-Situ Resource Management 120 Fig.7 Logging Companies Operating within Marovo Lagoon 139 PLATES Plate 1 Marovo Lagoon in the New Georgia Group, Western Province 9 Plate 2 Vaenimoturu Reef MPA 17 Plate 3 Three Territorial Claims of Butubutu Babata 42 Plate 4 The Marine Puava (Area 2) of Butubutu Babata 101 Plate 5 Establishing Boundaries A and B of Area 2 106 Plate 6 Outer Limits of Boundary C, Area 2 108 Plate 7 Hypothetical Outer Limits of Boundary C Defined with Recognizable Certainty by an Outward Extension to a Pre- determined Distance 111 Plate 8 Dual Benefits of Extending Boundary C 156 BIBLIOGRAPHY 200 vi In memory of my long gone chief mentor vii Acknowledgement At the completion of this undertaking, many thanks are due to certain individuals and organisations without whom this thesis may not be pursued or completed. First and foremost, I wish to acknowledge IWP-(SI) for financial support rendered during the first part of research. On the same note, acknowledgement is extended to USP Law School for financial assistance in the course of completing the research. I am also indebted to Ueta Fa’asili of SPC for provision of primary documents referenced herein. Special thanks goes also to a wide range of people who have provided me invaluable help through views and opinions that shaped the development of this thesis, including Dr Vina Ram-Bidesi, Yoli Tom’tavala my Supervisor, Patrick Mesia of IWP-(SI), and the Elders Council of Butubutu Babata , in particular, Alrick Jimuru and Wilson Liligeto for providing insight into certain aspects of Marovo kastom . For a workload that can be so daunting at times, inner strength proved to be a vital recipe to pull through, and for which I am thankful for the support and prayers of my family. Finally, at a time when energy is waning and motivation fading, I am thankful to Associate-Professor Peter MacFarlane for his unfailing support and encouragement that finally gets the research back on track. Acknowledgement is similarly extended to Dalsie and Joan Bani of the SASS team for administratively expediting this academic endeavour. And to all those who have assisted in one way or another, tagio liu na !! Statement of Authorship Except where reference is made within the text hereof, this thesis contains no material published elsewhere or extracted in whole or part from a thesis or dissertation by which I have qualified or been awarded another degree or diploma. No other person’s work, either published or unpublished, has been used without due acknowledgement in the main text of the thesis. Similarly, this thesis has not been submitted for the award of any academic qualification in any other university or tertiary 1 institution. This work shall not be reproduced communicated cited consulted photocopied or uploaded for online access without the author’s express permission. Summary This thesis examines through a case study the legal and governance issues facing coastal resource governance in the region. Of particular interest is the power sharing arrangement and decentralised governance structures within states that impinge on the use and control over coastal resources. By examining the mechanics of resource governance and accompanying legislative framework, the task involves identifying opportunities presented by current decentralisation or devolution laws that provide the basis, if any, for transforming traditional management institutions into legally incorporated bodies that can undertake resource management functions within formal structures. Dictated largely by the conditions of the scholarship, the scope of the thesis is predetermined, thus, focusing on a pilot community in Solomon Islands chosen for purposes of a pilot study into coastal fisheries and legislative empowerment by the International Waters Project (IWP). 1 Butubutu Babata 2 of Chea in the Marovo Lagoon, Solomon Islands, will provide the case study for analysis, thus, the focus of this thesis. A key task involves examination of the role, functions and existing structure of the Butubutu as developed under its kastomary marine tenure ( KMT ) system . Determining its KMT system’s role and functions within Marovo society will help identity specific elements of relevance that may be incorporated into a newly developed management regime pursued under the framework of decentralised resource governance. In a nutshell, the thesis intends to provide discussion and analysis of the 1
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