WOMEN’S RIGHTS TO LAND IN TONGA: A REVIEW OF POLICY AND LEGAL FRAMEWORK SINCE 1983 LAND COMMISSION LOUPUA PAHULU KULI WOMEN’S RIGHTS TO LAND IN TONGA: A REVIEW OF POLICY AND LEGAL FRAMEWORK SINCE 1983 LAND COMMISSION by Loupua Pahulu Kuli A thesis submitted in fulfillment of the requirements for the degree of Master of Laws School of Law Faculty of Arts, Law and Education The University of the South Pacific September, 2016 ACKNOWLEDGEMENTS I humbly accepted the scholarship for this research feeling very honored and humbled, and with much hope that my research will contribute to the reforming of the law and policy of my home country with regard to the rights of women to land. Trying to balance Tongan culture and traditions with human rights in daily practices is quite a challenge. Women’s rights to land has been one of the contentious issues in Tonga for the last twenty years and being a woman, of course, makes this issue dearer to my heart. Without the willing assistance, support and effort of those mentioned below, this research would never had been completed in time. Glory and honor be to God Almighty, that without HIS guidance and protection I would not be able to complete this research. To my humble and most intelligent supervisor, Emeritus Professor Paterson – with your invaluable assistance, patience and guidance throughout the research I would not have had the courage to strive and complete this thesis. Thank you so much. To my precious daughter Loupua Jr and son Viliami Jr and my husband Ma’afu Kuli, thank you so much for all your support and patience during this research. You all gave me courage and strength to complete this thesis. To my parents, Mafi and Sulia Kiola and my siblings – thank you all for your continuous support and prayers. The polite and ready assistance of Mrs. Gloria Pole’o and Tonga’s Legislative Assembly staffs - thank you so much. To the Minister of Lands Hon. Lord Ma’afu, Legal Administrator - Rosamond Bing, and staffs of the Ministry of Lands I thank you all for your valuable assistance to my research. To the Solicitor General Mr. Kefu, thank you for allowing me to take time off to complete this research. Finally, I record my sincere appreciation to the participants of the survey conducted for this thesis. To all the nobles of the realm who allowed me to interview them, my heartfelt thank you for your valuable contribution. To all the 200 people both in Tongatapu and Vava’u who willingly welcomed and participated in the survey, thank you for all your contributions. The valuable support from the participants to the survey encouraged me to know that I do have a duty to the people of Tonga to make this contribution to the ongoing debate on the land rights for the women in our country. i ABSTRACT This thesis focuses on the legal framework, Government policy, ideologies of human rights and social context in relation to women’s rights to land in the Kingdom of Tonga. It begins by tracing the history of land laws during the reign of George Tupou I, and later because these laws form the foundation of the current land tenure system of Kingdom, and then it turns to consider the Tonga’s commitments to international, regional and national human rights instruments, leading to, and completing with, a discussion of the recent developments, or rather non-developments in Tonga with regard to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has still not been ratified. The thesis then analyses the recommendations of two Land Commissions established by the Government to inquire into land related practices and issues and to make recommendations for reform. The first was established in the year 1983, but all its recommendations, some of which would have improved the position of women with regard to land, were ignored and abandoned up to date. The second Land Commission was established in 2008, and in its Final Report in 2012 made recommendations which are the main focus of the discussions and analysis in this thesis. Nine of the recommendations of this Commission related to promoting more land rights for Tongan women. To date there is no aspect of the 2008 Land Commission’s Final Report that has drawn any official comment, inside or outside Tonga, or indeed, much public comment. The nine recommendations contained in the report of the 2008 Land Commission were the main focus of a public survey conducted as part of this thesis, and described in Chapter 7. The purpose of this survey was to find out the view of the commoners and estate holders as to whether or not they support these nine recommendations of the 2008 Land Commission and also to seek their views more generally about rights of women to land. This thesis concludes with a discussion of some of the important factors relating to promoting of women’s rights to land in Tonga, including, in particular, Tonga’s culture, traditions and social system, the commitments Tonga made to international, regional and national gender equity instruments and the shortage of land for distribution, and comes to a close with some recommendations for a way forward for the promotion of women’s rights to land in Tonga. ii LIST OF ACRONYMS BDPA: Declaration and Platform for Action on the Fourth World Conference on Women, Beijing, China, 1995. CEDAW: Convention on the Elimination of All Forms of Discrimination against Women. CERD: Convention on the Elimination of All Forms of Racial Discrimination CPoA: Commonwealth Plan of Action for Gender Equality 2005-2015 CRC: Convention on the Rights of the Child. CSO: Civil Society Organisations GRB: Gender-Responsive Budget IBOR: International Bill of Rights ICCPR: International Covenant on Civil and Political Rights ICESCR: International Covenant on Economic, Social and Cultural Rights IPGD: Three Year Implementation Plan for Gender and Development 2003/04 -2005/06 (Tonga) MDG (Tonga): Tonga Millennium Development Goal 2005 MDG: United Nations Millennium Development Goal 2005 NGO: Non-Government Organisations NPGD: National Policy on Gender and Development 2001 (Tonga) PPA: Pacific Platform of Action for Gender Equality 1994 PRSP: Poverty Reduction Strategy Paper RNPGD: Revised National Policy on Gender and Development 2012 (Tonga) RPPA: Revised Pacific Platform of Action for Gender Equality 2005-2015 SWAps: Sector Wide Approaches UDHR: Universal Declaration of Human Rights UN: United Nations UNHRC: United Nations Human Rights Council UPR: Universal Periodic Report WID: Women in Development 7WAMM: Seventh Commonwealth Gender/Women's Ministers' Meeting that took place in Fiji from 30 May-2 June 2004. iii LIST OF DEFINITIONS (These definitions are applied throughout the complete thesis) “Attached hereditary estate” or “attached estate” refer to the hereditary estate(s) prescribed by Schedule 1 of the Land Act to attach to a noble title. “Court” refers to the Land Court of Tonga established under the Act of Constitution of Tonga and Land Act “Estate holder” or “ma’u tofi’a” refer to the title holders and holders of the hereditary estates listed in Schedule I of the Land Act. These two words are used interchangeably in the paper. “fahu system” – a traditional system whereby a father’s sister has higher rank and authority than her brother and her brother’s children. In practice the fahu is the father’s eldest sister and in the absence of the eldest sister a younger sister can also be the fahu. In this traditional system, the fahu’s opinions must be respected and can sometimes override the father’s decision with regards to his children. In Tongan weddings, funerals and birthdays the fahu is given the most Tongan artifacts “Hereditary estate” or “tofi’a” refers to the estates hold by the nobles and matapule as listed in Schedule I of the Land Act. These two words are used interchangeably in this paper. “Land Act” refers to the Land Act [Cap 132] (Tonga) inclusive of all amendments up to the year 2013 “landholder/holder” - refers to any Tongan subject who registers and holds a tax allotment (‘api tukuhau) and/or town allotment (‘api kolo). “matapule” refers to the talking chiefs of the nobles. Each noble appoints his own matapule from his hereditary estates. The number of matapule a noble can appoint is at the noble’s discretion. “Minister of Lands” refers to the Minister of Land, Survey, Natural Resources and Environment. “own” – in relation to a registered allotment, the right of the holder of the allotment “tax allotment” refers to land for plantation and commonly known as bush or country land for farming (‘api tukuhau). “town allotment” refers to land for residence (‘api kolo). iv “Tupou I” refers to King George Tupou I who reigned in Tonga from the year 1845 - 1893 and is also known as the ‘Conqueror of Tonga’ “1917 Land Commission” refers to the Royal Land Commission established and operated from 1917 to 1921. It was established to hear land disputes. It was constituted and empowered to take over all the cases of dispute over land which had been brought before the Supreme Court. “1983 Land Commission” refers to the Royal Land Commission established under the Commission dated 22 April 1983, issued by His Majesty the late King Taufa’ahau Tupou IV. “2008 Land Commission” refers to the Royal Land Commission established under the Commission dated 9 October 2008, issued by His Majesty the late King George V. v TABLE OF CONTENTS Acknowledgement i Abstract ii List of Acronyms iii List of Definitions iv-v Table of Contents vi-ix List of Tables x List of Maps xi CHAPTER 1: INTRODUCTION Introduction 1-3