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.
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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.
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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 1.1 Brief history of land laws during King George Tupou I’s 3-4 reign 1.2 Tongan culture and human rights ideologies 4-7 1.3 Land laws and shortage of land 7-9 1.4 Brief overview of national land policies – Land 9-11 Commissions and National Policy Framework 1.5 Literature review 11-14 1.6 Research methodology 15-17 1.7 Thesis statement of the research 17 1.8 Relevance of the research 18-20 1.9 Thesis structure 20-21
CHAPTER 2: CURRENT LAND TENURE SYSTEM IN TONGA: CONSTITUTION AND LAND ACT
Introduction 22-23 2.1 Brief history of the land laws during King George Tupou I’s 23-31 reign 2.2 Royal and royal family estates 31-37 2.3 Government/Crown land 38-40
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2.4 Nobles’ and titular chiefs’ hereditary estates 40-43 2.5 Commoners’ allotments 43-52 2.6 Leases/licenses/permits 52-59 2.7 Mortgages 59-61 2.8 Conclusion 61
CHAPTER 3: INTERNATIONAL, REGIONAL AND NATIONAL INSTRUMENTS THAT PROVIDE BASIS FOR GENDER EQUALITY TO LAND
Introduction 62 3.1 Relevant international policies 63-78 3.2 Relevant regional policies 78-81 3.3 Internal polices 81-85 3.4 Failure to adopt CEDAW 85-93 3.5 Conclusion 93-94
CHAPTER 4: THE 1983 LAND COMMISSION Introduction 95 4.1 Background to the establishment of 1983 Land Commission 95-99 4.2 1983 Land Commission’s terms of reference 99-100 4.3 Persons appointed as Commissioners 100-102 4.4 Work timeline of the 1983 Land Commission 102 4.5 Public involvement in the 1983 Land Commission’s work 102-103 4.6 Overview of the contents of the 1983 Land Commission’s 103-106 report 4.7 Recommendations of the 1983 Land Commission directly 106-112 referring to women’s rights to land 4.8 Women’s entitlement to limited freehold 112-115 4.9 Omissions from the 1983 Land Commission Report 115-116 4.10 Conclusion 117
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CHAPTER 5: IMPLEMENTATION OF THE 1983 LAND COMMISSION
Introduction 118 5.1 Law in relation to Commissions’ reports 118-119 5.2 General Practice with regards to Commissions’ reports 119-121 5.3 What happened to the 1983 Land Commission’s report after submission to Privy Council? 121-122 5.4 What could be done to ensure implementation of the 1983 122 Land Commission’s recommendations? 5.5 Conclusion 123
CHAPTER 6: 2008 LAND COMMISSION: RECOMMENDATIONS AND FINDINGS WITH REGARDS TO WOMEN’S RIGHTS TO LAND
Introduction 124 6.1 Background to the establishment of the 2008 Land 125-126 Commission 6.2 2008 Land Commission’s terms of reference 126-127 6.3 Membership of the 2008 Land Commission 127-129 6.4 Work timeline of the 2008 Land Commission 129-131 6.5 Public involvement in the 2008 Land Commission’s work 131-132 6.6 Recommendations of the 2008 Land Commission directly referring to women’s rights to land 132-152 6.7 Conclusion 152-153
CHAPTER 7: POPULAR VIEW ON WOMEN’S RIGHTS TO LAND
Introduction 154-155 7.1 Purpose of the survey 155 7.2 Challenges in conducting the survey 155-157 7.3 Results and analysis of the survey – commoners 157-172 7.4 Results and analysis of the survey – estate holders 172-176
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7.5 Conclusion 176-179
CHAPTER 8: CONCLUSION Introduction 180 8.1 Land Laws and Tongan traditions, cultures and social 181-182 system 8.2 Shortage of land for distribution 182-184 8.3 Tonga’s commitments to gender equality instruments 184-185 8.4 Tonga’s national policies 185 8.5 Way forward for women’s rights to land in Tonga 185-187
BIBLIOGRAPHY 188-195 Appendices Appendix 1: List of royal estates Appendix 2: List of royal family estates Appendix 3: List of estate holders
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LIST OF TABLES Table No. Title of Table Page No. 1 Total number of registered allotments in the Kingdom of Tonga for the years 2010-2011 51 2 Total number of leases in the Kingdom of Tonga for the years 2010-2011 58 3 Should women of 21 years and above have the right to apply and register a town allotment 158 4 Should the legal limitations of adultery and fornication on unmarried daughter’ interest on land be repealed? 160 5 Should daughters born in wedlock succeed to land in the absence of a son born in wedlock? 162 6 Should the legal limitations of adultery and fornication on a widow’s interest in land be repealed? 164 7 Should a widow be permitted by law to lease or mortgage her deceased husband’s land? 166 8 Should a deserted wife have the right to live and utilise the husband’s land? 168 9 Should legally adopted children be entitled to adoptive father’s land in the absence of children born in wedlock? 170 10 Should a landholder offer a plot of land to his brothers, sisters and children when sub-dividing? 171 11 Estate holders’ views on the nine women’s rights to land (Part 1 & related recommendations made by the 2008 Commission 173-174 2) 12 Summary of quantitative statistics collected from the 177-178 survey
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LIST OF MAPS
Map No. Title of Map Page No. 1 Land Distribution in Tongatapu 34 2 Land Distribution in ‘Eua 35 3 Land Distribution in Ha’apai 36 4 Land Distribution in Vava’u 37
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CHAPTER 1: INTRODUCTION ‘The fringes of today will be the streams of tomorrow.’1
INTRODUCTION Land is the only terrestrial natural resource for Tonga thus making it very valuable to every Tongan. Natural resources such as crude oil, phosphate and the like are not available in the country. Tonga has a unique land tenure system. Before the 1862 Code of Laws the land in Tonga was held by chiefs in accordance with the rules of Tongan custom. The 1862 Code of Laws modified the customary land holding in Tonga, and the 1875 Constitution completely swept away the customary land holding in Tonga and replaced it by the ownership of all the land by the King. Today, there is no customary land system in Tonga.2 Although there is no statutory recognition of a customary land tenure system, Tonga’s traditional social system at the time when the Land Act3 was enacted in 1927 is embedded in the rule of succession to land.4
There are four main types of landholdings in the land tenure system of Tonga (see Chapter 2 for more detail on these land ownerships). The first type of landholding is crown or government land (see subheading 2.3 for clarification on the meaning of “crown” and “government” in the context of Tonga land tenure system in which these two words have the same meaning). All land in Tonga that is not held as royal or royal family estates or as noble’s hereditary estates is crown or government land.5 The second type of landholding are the royal estates and the royal family estates. These are land held by the Sovereign and belong to the King and his family. They are lands for the use of the members of the royal family (see subheading 2.2). The third type of landholding are hereditary estates held by nobles and some titular chiefs, as estate holders (see subheading 2.4). The majority of the land in Tonga is held by this form of landholding. The fourth
1 Prince Tu’ipelehake, estate holder, Tonga (Nuku’alofa, 3 May 2013). 2 Sue Farran and Loupua Sefokuli, ‘Tonga’ in Don Paterson and Sue Farran (eds), South Pacific Land Systems (2013) 264. 3 [Cap. 132] (Tonga) which came into force on 23 August 1927. 4 Mosikaka Moengangongo, ‘Tonga: Legal Constraints and Social Potentials’ in Land Rights of Pacific Women (1986). 5 Above, n 2, p 264. 1 type of landholding are the commoners’ allotments. These are plots of land which are held and occupied by commoners and which are granted from either a hereditary estate or government land (see subheading 2.4).
The total land area for the whole of Tonga, both the inhabited and uninhabited islands, not including internal water areas, is 66,882,000 square meters.6 The latest data from the Ministry of Lands in relation to areas of the landholding in Tonga was requested by the 2008 Land Commission in 2011 (see Chapter 4 for detail on this Land Commission). The report from the Ministry of Lands was not able to confirm the total areas for crown lands, hereditary estates and registered allotments. A survey which was commenced in the early 1970’s ceased before accurate calculations and conclusive data were obtained.7 The result of the inability to accurately calculate the areas of allotments, hereditary estates, crown land and royal estate lands is that, although the total land area for Tonga has been calculated, calculations for each of these landholdings have not yet been able to be completed.
After being a constitutional monarchy for the last 135 years, Tonga is now a semi- democratic government with the monarch as the head of state.8 In November 2010 a milestone was reached when significant changes were made to Tonga’s political structure. Following an amendment to the Act of Constitution of Tonga in 2010,9 17 representatives of the people were elected from 17 newly established constituencies throughout the Kingdom. The election of the nine nobles’ representatives still remains the same - they continue to be elected by the 33 nobles of the realm. In the same year another amendment
6 Ministry of Land, Survey, Natural Resources and Environment, ‘Areas of the Islands – Tonga’ (2013) p 6. 7 Interview with Miss Rosamond Bing, Legal Administrator, Ministry of Land, Survey, Natural Resources and Environment (Nuku’alofa, 28 August 2012). 8 The reason why the author considers Tonga’s political system as a ‘semi-democratic system’ is because although 17 members of the Legislative Assembly are elected by the people, there are still the 9 seats reserved for the nobles and the 4 seats to be elected at the sole discretion of the Prime Minister. The monarch still has the sole discretion of whether to assent or dissent to a Bill passed by the Parliament. Therefore in lawmaking the monarch still controls what law is to be applied in Tonga. 9 Act of the Constitution of Tonga (Amendment) Act 2010, No. 14/2010, which came into force on 10 May 2010 under Gazette No. 5, dated 10 May 2010. 2 to the Act of Constitution of Tonga10 was made by which the executive authority was removed from the King and Privy Council and vested in the Prime Minister and his Cabinet.11 Another change was effected whereby four ministerial seats are reserved for appointment at the sole discretion of the Prime Minister.12 While major changes have been made in recent times to the political structure of Tonga, the same cannot be said about its distinctive land tenure system, which remains embedded in the Act of Constitution of Tonga 1875,13 and Land Act 1927.14
1.1 BRIEF HISTORY OF LAND LAWS DURING KING GEORGE TUPOU I’s REIGN During the reign of King George Tupou I (Tupou I), 1845-1893, he proclaimed a written constitution for Tonga in 1875 and established an independent monarchy. Tupou I set Tonga on a historical course quite different from its neighbouring countries. In order to consolidate his authority and lessen the power of strong rival chiefs, Tupou I instituted reforms which gave all males individual rights to land, creating a patriarchal (male- dominant) land system. Tongan commoners were set free from serfdom and vassalage and the other powers Tongan chiefs had over their people’s lives and properties. The chiefs were told to ‘allot portions of land to the people.’15 While this was the situation in Tonga, the neighbouring Pacific Islands took different paths whereby land rights underwent changes which clearly reflected colonial power interests. The colonial government ‘rapidly established a distinction between freehold and customary or native title.’16 This duality allowed alienable interests in land and preservation of communal native rights. Tonga’s 1875 Constitution did not adopt this land system. Instead Tonga’s land tenure system allowed individual life interests for every adult male to hold a tax allotment (‘api
10 Act of the Constitution of Tonga (Amendment) (No. 2) Act 2010, No.20/2010, which came into force on 24 November 2010 under Gazette No.29, dated 24 November 2010. 11 Above, n 10. 12 Above, n 10. 13 [Cap. 2] (Tonga) which came into force on 4 November 1875. 14 Above, n 3. 15 Kerry James, ‘Right and Privilege in Tongan Land Tenure’ in R. Gerard Ward and Elizabeth Kingdon (eds), Land, Custom and Practice in the South Pacific (1st ed, 1995) p 157. 16 Kerry James, above n 15, p 157. 3 tukuhau) and town allotment (‘api kolo).17 Prohibition of sale of land was, and still is, one of the fundamental principles of the land tenure system of Tonga. Some laws came into force during the reign of Tupou I which constructed the basis of the current land tenure system, especially the Vava’u Code 1838 and the Emancipation Code 1862, culminating in the 1875 Constitution of Tonga. It was not until August, 1927 that a comprehensive piece of legislation relating to land was consolidated and thus became the current principal code for land related matters in Tonga. This land code is known as the Land Act18. Since the last consolidation of the laws of Tonga in 1988, ten further amendments have been made to the Land Act.19
1.2 TONGAN CULTURE AND HUMAN RIGHTS IDEOLOGIES Promotion of women’s rights to land in Tonga has encountered one main challenge. This challenge is the Tongan culture and tradition relating to Tongan women’s social ranking within the Tongan society against the human rights ideologies.
‘Tongan culture is very much part of their daily lives today despite it not being entrenched in the Kingdom’s law as in other countries like Vanuatu and Fiji.’20 The aspect of Tongan culture which is particularly important in relation to promoting women’s rights to land in Tonga is the practice of the “fahu system”. With this system, women possess a “high status in Tongan society in their capacity as sisters, mothers and aunts.”21 For example the opinion of the “mehikitanga”22 (who is the “fahu”) may carry a ‘good deal of weight in determining the marriages of her brother’s children, she would herself probably marry according to the arrangements made by her own father or brother (who would, of course,
17 Provided that such adult has attained the age of 16 years and he is neither imbecile nor a convict in the case of succeeding to hereditary estates and their respective titles and also to the throne. 18 Above, n 3. 19 Land Amendment Act 1988 (Tonga), Land Amendment Act 1990 (Tonga), Land Amendment Act 1991 (Tonga), Land Amendment Act (No. 2) (Tonga), Land Amendment Act 1993 (Tonga), Land Amendment Act 1997 Tonga, Land Amendment Act 1999, Land Amendment Act (No. 2) (Tonga), Land Amendment Act 2002 (Tonga), Land Amendment Act 2013 (Tonga). 20 Interview with Hon. Lord Ma’afu, Minister of Lands (Nuku’alofa, 25 February 2013) 21 Ian C Campbell, Island Kingdom: Tonga Ancient and Modern (2nd ed., 2001), p 51. 22 Father’s eldest sister is considered the most seniority in the line of ‘mehikitanga’. 4 consider the opinion of their senior aunt).’23 Although Tonga’s culture may seem to be more westernised than it was twenty or thirty years ago, the fact is that culture is still very important to almost all Tongans. In Chapter 7 the six estate holders who participated in the survey strongly supported women’s traditional role in the Tongan society. In general, along with the commoners who participated in the survey, the respondents to the survey agreed that the “fahu system” is still very much practiced in Tonga despite changes to some aspects of it. There may seem to be some “transitional” stage in the culture of Tonga, but some aspects of changes may be more acceptable than others. While the idea of women’s rights to land is generally acceptable, its legal effects do not seem to enjoy any deep knowledge and understanding among the public.
Women’s right to land is considered by legal positivists as inherent, inalienable, indivisible and therefore universal.24 They are rights inherited by every human when are born. Human rights ideologies promote gender equality. Being one of the fundamental principles of the Commonwealth countries, gender equality promotes equality in rights, responsibilities and opportunities of women and men and girls and boys.25 On the other hand, cultural relativists argue that any proposal for change to be effected on any aspect of a particular culture or ethnic group ‘… is to be evaluated on the basis of its own values and norms of behaviour and not on the basis of those of another culture or ethnic group.’26
In promoting women’s rights, internationally and in the Pacific, ‘the notion of human rights has been used to fight patriarchal (male dominated) social structure within various cultures and economic system.’27 In the current land tenure system of Tonga ‘[w]omen
23 Ian C Campbell, above n 21, p 51. 24 Anita Jowitt, ‘The Notion of Human Rights’ in Anita Jowitt and Tess Newton Cain (eds), Passage of Change: Law, Society and Governance in the Pacific (2003) p 194 25 Commonwealth Secretariat, Commonwealth Plan of Action for Gender Equality 2005-2015 (Adopted June 2004). Available at http://www.unesco.org/education/information/nfsunesco/pdf/BEIJIN_E.PDF (Accessed 8 October 2012). 26 Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6(4) Human Rights Quarterly retrieved from http://hmb.utoronto.ca/Old%20Site/HMB303H/weekly_supp/week- 02/Donnelly_cultural_relativisim.pdf (Accessed 13 June 2013) p 400. 27 Anita Jowitt, above n 24, p 194. 5 were rather poorly served in the matter of formal land rights because it was assumed that men, in their roles as husbands, brothers and fathers, would continue to look after them.’28
In addition Tonga is a party to the United Nations’ Declaration of Rights from which all other human rights instruments develop. Tonga has also acceded to two core human rights conventions, the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC). Other gender related instruments to which Tonga has made commitment, such as Commonwealth Plan of Action for Gender Equality 2005-2015, Beijing Declaration and Platform for Action 1995 and so forth are discussed in detail in Chapter 3. At the national level, Tonga has gender equality policies in place. The main gender equality document is Tonga’s National Gender Policy on Gender and Development 2001, which was reviewed in 2012 and the Three Year Implementation Plan Gender Development 2003/04-2005/06. There is also the 2008 Land Commission’s Final Report where recommendations were made to improve women’s rights to land.
While Tonga has made commitments to various international human rights instruments women’s rights to land is still an issue under consideration in Tonga because of its cultural sensitivity, and it is likely that any accession to CEDAW will be with reservations in respect of succession rights and land ownership. This obviously does not bode well for the promotion of women’s rights to land.29
Professor Vijay Naidu of the University of the South Pacific, stated in 2001 that ‘cultural traditions are still a powerful force and tend to weaken the modernization process and slow the development effort.’30 Whether promoting women’s rights to land is regarded as modernization, or as development, the fact is that both these processes are regarded as
28 Kerry James, above n 15, p 162. 29 Human Rights Council, United Nations General Assembly, ‘Report on the Working Group on the Universal Review – Tonga’ (2013) Available at http://ohchr.org/HRBodies/UPR/.../A_HRC_23_4_Tonga_E.doc (Accessed 5 June 2013). 30 Professor Vijay Naidu cited Teo Fairbairn, ‘Modernisation and Development in the South Pacific’ in Anita Jowitt and Tess Newton Cain (eds.), Passage of Change – Law, Society and Governance in the Pacific (2001) p 11. 6 outside influences, and cultural traditions such as the “fahu system” and Tongans’ general belief that women’s place is in the ‘api are still the “powerful force” referred to by Professor Naidu which weakens and slows down the development of women’s rights to land. Professor Naidu went on to say that in the island countries, culture is significant ‘because of its role in national politics.’31 Professor Naidu suggested that cultures find their way into national politics when the politicians have to win the support of electors whose lives and livelihoods are reliant on the traditional sector ‘where matters of custom and tradition carry considerable political clout.’32
Although Tonga receives and accepts many western influences, these influences however cannot change one of the central aspects of Tonga’s cultures overnight. Changes take time and time is not only measured by the clock, but also by knowledge, available resources and understanding. That women’s proper place is in the home (‘api) is no longer the strict rule with Tongan women today that it used to be. Cultures of overseas country influence Tongan traditions and culture. As a result the recognition and respect paid to the Tongan women in their “fahu” position, is not as serious and strong as it was when the Land Act33 was enacted, but it is still significant.
1.3 LAND LAWS AND SHORTAGE OF LAND When there are discussions about distribution of land and giving more rights to a particular class of people, one of the delicate issues which requires thorough assessment is how much land is available. Studies in the 1960’s and 1970’s, and some more undertaken more recently have predicted that shortage of land in the 21st century will increase. This has become the reality with the land availability for distribution in Tonga today. In 1965 Maude predicted that by 1987 the Kingdom’s population will be around 150,00034 and in the same year there will be 64 percent of males aged 16 and over who would be without
31 Professor Vijay Naidu, above n 30, p 25. 32 Professor Vijay Naidu, above n 31, p 25. 33 Mosikaka Moengangongo, above n 4. 34 Alaric Maude, Population, Land and Livelihood of Tonga (PhD Thesis, Australian National University, 1965), and Tonga Council of Churches, Land and Migration (Compilation of Conference Papers and Resolutions of the Conference held 22-26 September 1975). 7 land.35 Maude predicted that a continued increase in the population of Tonga over a longer period of time would be tragic for Tonga.36 To supplement the studies conducted by Maude, Justice Roberts in his paper “Constitution and the Land Laws of Tonga” which was presented at the Land and Migration Seminar hosted by the Tonga Council of Churches in 1975 stated that there were at least 6,000 males over 16 years of age who had no land in 1975.37 By 2011 Tonga’s population had not reached Maude’s predicted number back in 1965 because Tonga’s total population was recorded as 103,03638. However the shortage of land is obvious.39 In addition to the increase of population, there is also the increase of soil erosion and sea inundation due to sea level rise, which contribute greatly to the shortage of land.40
Although the prediction from Maude and the Tongan Council of Churches is not entirely accurate with regards to the proportion of land per Tongan male of 16 years and above, the fact still remains that as of the year 2013, there is indeed a shortage of land to distribute for eligible Tongan males. It is clear from Justice Roberts’ paper that the number of people who will be landless in Tonga will indeed increase as a result of an increase in the population and therefore ‘[t]he problem of land distribution seems impossible to solve when there is not enough to go round.’41
The previous studies and predictions of some scholars about the shortage of land in Tonga is indeed the reality today – that there is a severe shortage of land in Tonga for distribution to every Tongan male who are eligible to hold an allotment. The shortage of land is a real concern, and one cannot give what one does not have. Therefore the shortage of land is a
35 Alaric Maude, Population, Land and Livelihood of Tonga (PhD Thesis, Australian National University, 1965), p 196. 36 Alaric Maude, above n 35, p 212. 37 Justice Roberts, ‘Constitution and the Land Laws of Tonga’ (Paper presented at the Land and Migration in the Tonga Council of Churches Conference, Nuku’alofa, 22-26 September 1975) p 11. 38 Statistics Department of Tonga, Tonga National Population and Housing Census 2011 (2011) retrieved from www.spc.int/prism/tonga (Accessed 22 November 2012). 39 Hon. Lord Ma’afu, above n 20. 40 Rosamond Bing, above n 7. 41 Justice Roberts, above n 37. 8 very important element to be considered, and should be given particular attention when considering the promotion of more land rights for women in Tonga.
1.4 BRIEF OVERVIEW OF NATIONAL LAND POLICIES – LAND COMMISSIONS AND NATIONAL POLICY FRAMEWORK So far three Land Commissions have been established with mandates relating to land. The reports of two of these Land Commissions (the 1983 Land Commission and 2008 Land Commission – see Chapters 4, 5 and 6 for detail on these two Land Commissions) are fundamental in promoting women’s land rights because each report recommended similar amendments to Tonga’s land laws for significant improvements of women’s rights to land. The 2008 Land Commission’s Final Report is the most comprehensive and recent policy relating to land in Tonga.
The first Land Commission established in Tonga to deal with land matters was the 1917 Land Commission. The mandate of the 1917 Land Commission differs from that of the two later Land Commissions in that instead of reviewing and inquiring into land issues, it was established to hear land disputes. It was constituted and empowered to take over all the cases of dispute over land which has been brought before the Supreme Court. When the 1917 Land Commission was established under the Land Commission Act 1917 there had not been a Land Court established under the laws of Tonga. The 1917 Land Commission operated from 1917 to 1921 but the validity of this Commission’s constitution, functions and decisions were the subject of considerable legal arguments in later years. In the year 1932 the court held that the 1917 Land Commission was unlawful. Chief Justice Hyne confirmed the unlawfulness of the 1917 Land Commission in the case of Kalaniuvalu v Minister of Lands42 where he stated: ‘In 1932, however, the validity of the “Land Commission Act 1917” was challenged; and the Land Court, in an action brought by the Minister of Land against Sioeli Pangia for the recovery of the villages given him by the Land Commission, held that the findings of the Commission were of no effect, the
42 (1937) Tonga Law Reports Vol II (1923-1962), p40 at 43. 9
Commission being contrary to the Constitution, as amended by Law. No. 25 of 1916. With this decision I entirely agree. The Commission was not the Land Court contemplated by the Act of 1916.’43
The 1917 Land Commission was established with a mandate to investigate into land issues and not to function as a Land Court as contemplated by the then Land Act.
In 1921, by virtue of Act No. 3/1921, the 1917 Land Commission was terminated. It was then replaced by the Land Court, which was formally constituted and established with jurisdiction defined in what is now section 144 of the Land Act.
The second Land Commission was established in 1983 with a different mandate – ‘to review all practices, usages and laws relating to land in the Kingdom.’44 To date the report of 1983 Land Commission has received very little official attention and its recommendations have languished unattended and eventually forgotten despite the failure to act on the report being subjected to many criticisms from some scholars45 (see Chapters 4 and 5 for detail on 1983 Land Commission).
The third Land Commission was established in 2008 with a mandate similar to that of the 1983 Land Commission. The 2008 Land Commission submitted its Final Report to His Majesty King George Tupou VI in June 2012. This lengthy report has not been subjected to any official discussion or comment either in the Cabinet, Legislative Assembly or elsewhere (see Chapters 6 for detail on 2008 Land Commission).
In addition to the three Land Commissions, Tonga has its own national policy on gender equality. The 2001 National Gender Policy on Gender and Development and its Three
43 Kalaniuvalu v Minister of Land, (1937) Tonga Law Reports, Vol.II (1923-1962), p 40 at 43. 44 1983 Land Commission, Report (1985), p I. 45 Alaric Maude and Feleti Sevele, ‘Tonga; Equality overtaking Privilege’ in Ron Crocombe (ed), Land Tenure in the Pacific (3rd ed, 1987), p 121 and Kerry James, ‘Right and Privilege in Tongan Land Tenure’ in Ward and Kingdon (eds), Land Custom and Practice in the South Pacific (1995), p 157. 10
Year Implementation Strategy have established policies in relation to the promotion of women’s rights to land in Tonga, in different aspects.
Although there are clear policies in Tonga which are directed towards the improvement of women’s rights to land, the fact still remains that the lack of rights of women to land in the laws of Tonga has remained the same for over a century now.
1.5 LITERATURE REVIEW Women’s rights have become a controversial issue in many countries in the world including Tonga. Promotion of women’s rights to land in Tonga faces multiple challenges. Some of these challenges are Tonga’s social system, culture and traditions which are believed by many to hinder women’s succession to land in the current Tongan land tenure system. A review of the literature was undertaken to provide evidence on the historical background, and how Tongan traditions, culture and social system have influenced the land laws in Tonga and created limited land rights for Tongan women. Consultation with literature was also undertaken to provide information on Tonga’s land tenure system and the challenges this land system faced in the past, and continues to face in the present. Further, literature was consulted to provide evidence on how Tongan women’s limited land rights was perceived in the past as compared with the present. The literature also provided an understanding of the major role which Tonga’s traditions, culture and social system has played in the advancement of land rights for Tongan women.
Regarding the importance of traditions, culture and social system of the Tongan society Ian Campbell in Island Kingdom: Tonga Ancient and Modern (2nd ed., 2001) examined them in ancient Tonga, during the transition period and now in the modern Tonga. Campbell provided an ideal history on Tonga and the political developments up to the times of the late King Tupou IV’s. In his book Campbell described in detail the importance of the tradition role of women in the “fahu” and “mehikitanga” systems and how this social ranking of Tongan women still affects the culture and practices in the Tongan society to date. Dr. Latukefu in The Tongan Constitution – A brief history to celebrate its Centenary, (1st ed., 1975) provides a very comprehensive description and discussion not 11 only of Tongan traditions and customs but also on the history of Tonga. It provided an in- depth understanding of some principles underlying the current land tenure system in Tonga. Although this book focused on the development of the 1875 Constitution of Tonga it also provided some backgrounds on the formulation period of the Tongan land laws including the Land Act46. Additionally, Dr. Latukefu in Church and the State in Tonga, (1980) provided a study of the formative period of modern Tongan history. He provided the first substantial study by a Tongan of the history of the Tongan monarchy and government. Latukefu’s book is a rich documentary study that is reinforced by knowledge of local language, customs, and traditions. Much of the book deals with the development of kingship and the emergence of written codes of law before the 1875 Constitution of Tonga.
In order to understand the relationship between culture and human rights and the effect one has on the other, Donnelly in Cultural Relativism and Universal Human Rights, (1984) provided a great analysis of the relationship between culture and human rights. He explained what is culture relativity and how this notion is used as an excuse for violation of international human rights standards. Donnelly discussed how culture values and practices are legitimately subject to criticism from a human rights perspective. He proposed a hierarchy of cultural relativities which are - the substance of rights, the interpretation of rights, and the form in which particular rights are implemented. Donnelly concluded that a distinction should be made between radical human rights universalism and a weak cultural relativist approach. More recent discussion of the relationship between human rights and culture is contained in Jowitt and Newton in The Passage of Change: Law, Society and Governance in the Pacific, (2003) discussed how Western societies have various ideologies (including patriarchy and modernisation) and belief systems, and that these ideologies affect the power structure of a society. Jowitt and Newton suggested that it is useful to analyse the challenges or critique ideologies for questioning human rights and how the current of human rights should be viewed in relation to other rights, such as community, cultural and religious rights. Further, they suggested that people accept
46 Above, n 3. 12 ideologies that are pervasive as “natural” but what is useful to look at are the other aspects of law and social order. Jowitt and Newton believed that the best approach for introducing human rights ideologies into a community is to create a recognition that human rights are statement or beliefs about ideals rather than an unchanging statement of natural order. In such a way, government and people are provided with aspiration and goals.
In relation to the land tenure system in Tonga, Paterson and Farran in South Pacific Property Law (2004) provided a comprehensive description of different types of landholding, such as ownership, possession, interest and so forth, and their respective legal effects. The book offers some thoughts on the challenges and legal difficulties facing the South Pacific region as its people and economies evolve. The book discussed how customs were of great importance in relation to developing land laws in the South Pacific Islands including Tonga. Developing from Paterson and Farran (2004), Farran and Sefokuli in “Tonga” in South Pacific Land System, (2013) specifically described the current land system and practices in Tonga. The land tenure system of Tonga and its legal framework provides the types of landholdings, land transactions and land use currently existing in Tonga. They also discussed, in brief, the land issues currently faced by Tonga, including shortage of land, illegal land transactions and so forth. Farran and Sefokuli is the latest report on the land issues which Tonga currently faces. Kerry James in Right and Privilege in Tongan Land Tenure (1995) studied the history of the development of legislation leading up to the 1875 Constitution of Tonga during Tupou I’s reign. James explained how with each law that was enacted during Tupou I’s era, a new development was inserted but still Tonga’s land tenure system continues to reflect a “customary” communalism system in relation to social strata as well as the changes in the value of land with less development towards individual land rights. James also discussed how allotments were derived mostly from the hereditary estates and by the Land Act 1882, each male commoner and not women was entitled to a small town allotment and tax allotment. Although this article discussed general issues on land laws it also provide some understanding on Tonga’s land practices particularly during the years led up to 1995.
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Further Mosikaka Moengangongo in her article “Tonga: Legal Constraints and Social Potentials” (1986) discussed how Tongan women’s limited land rights impinges upon development. She also talked described the social privileges Tongan women do have through the “fahu system” and the social ranking system in the Tongan society, and how this impinges upon women’s rights to land. She discussed further how the current Tonga land tenure system is based on Tonga’s traditional land tenure where it was predominantly the domain of men and that the current land tenure system provides women with only a few and insecure land rights. She believed that in spite of the limitation of women’s rights to land in the land laws, the women’s “silent rights” are still significant, but now inadequate. She clarified how Tongan women’s “silent rights” are temporary and do not provide ownership over the land. In this article Moengangongo emphasised the limited rights that Tongan women have to land and talked about the certain social rights women do have through the “fahu system”. Moengangongo believed that the uncertainty of land tenure for women is a major constraint for long term, large capital investment. She suggested that in order for women to participate more fully in the economic development of Tonga, the land laws need to be revised to provide for women to own land.
Women’s rights to land in Tonga have become an issue, and the debate surrounding this issue has been intensified in the last decade or so. Researches have shown that Tongan women are discriminated against with regards to rights to land in Tonga because of gender, social, culture and traditions. Some studies showed that although there is no statutory recognition of customs and traditions in the laws of Tonga, there is strong evidence that as regards to land laws, Tonga’s traditions, culture and social system were the foundation for many of these rules47. Other studies revealed that human rights ideologies are in fact beliefs, and such beliefs should be considered against what a community considered as “natural”. Taken as a whole, it appears that the women’s rights to land in Tonga have become more of an issue after Tonga joined the international community and the country became committed to some international, regional and national gender equality instruments.
47 Human Rights Council, above n 29. 14
1.6 RESEARCH METHODOLOGY The research utilized both quantitative and qualitative research methodologies but was rooted in qualitative analytic approach. The reason in selecting this data gathering approach was that a combination of these two methodologies provides a better understanding of research problems than either approach alone.48 It was of qualitative nature because the quality of the data was analysed before inclusion as part of the paper. The quantitative method was utilised in the survey with the semi-open questionnaires to collect statistical data to support the analysis of the popular opinions about the nine recommendations in the 2008 Land Commission’s Final Report relating to women’s rights.
Data/Material gathering There were four main methods used in collecting data for this paper. a. Desk Review Desk review involved reviewing the relevant literature, relevant laws of Tonga, the 1983 Land Commission’s report, 2008 Land Commission’s Final Report, 1975 Council of Churches’ Land and Migration Seminar paper, Tonga’s National Policy on Gender and Development and related national reports that relate to women’s rights to land. Resources from the Internet include the international and regional gender equality instruments to which Tonga is committed. The rationale for analysing these international instruments was to provide the basis for gender equality to ownership of land. b. Collection of maps The second method was collecting of maps from the Ministry of Lands. These maps show the division of estates on the five main islands of Tonga. The purpose of collecting these maps was to provide a visual image on the distribution of landholdings throughout the five islands of Tonga.
48 John W. Creswell and Vicki L. Plano Clark, ‘Chapter 1 – Understanding Mixed Methods Research’ in Designing and Conducting Mixed Methods Research (2006). Available at http://www.sagepub.com/upm- data/10981_Chapter_1.pdf (Accessed 5 May 2012), p 5. 15 c. Unstructured interviews of key formants The third method used was through unstructured subject-centered interviews of key informants. The main focus of these interviews was to: (i) find out the reasons why the 1983 Land Commission’s recommendations were not implemented and (ii) check the status and progress (if any) with regard to the implementation of the 2008 Land Commission’s Final Report. The Legal Administrator from Ministry of Lands was interviewed with regard to the implementation the two Land Commissions’ reports. The Clerk of the Legislative Assembly was also interviewed as to the likely time for the 2008 Land Commission’s Final Report to be tabled in the Legislative Assembly. d. Questionnaire The questionnaire was used during the survey. Each question within the questionnaire was partly closed and partly open. These questionnaires were hand administered by the researcher in order to also collect views from the participants for qualitative analysis. The same set of questions was asked of the commoners and of the estate holders.
The sample size for the survey conducted was 200 persons from the population of Tongatapu and Vava’u, the two main islands of Tonga. The reason for choosing the sample size of the participants was because of the time constraint on the research. Tonga has five main inhabited islands. Tonga’s total population is 10, 3036; 52001 male and 51035 female.49 The numbers of both genders are almost the same. The two islands from where the participants were chosen were the two most populated islands: Tongatapu which has 74 percent of the total population, and Vava’u Island, which has 14 percent of the population. The remaining 12 percent of the population is distributed amongst the other three islands of Ha’apai, ‘Eua and the two Niuas.
The participants for this survey were chosen based on three main criteria. The first criterion was gender. The logic was to find out if gender affects the perceptions of the participants. The number from each gender was selected in proportion to the total number of each gender in both islands. The second criterion was locality - urban or rural. Some
49 Statistics Department of Tonga, above n 38. 16 participants were selected from rural areas whereas some were selected from urban areas, the reason being to determine if there are differences in view due to physical locality. The third criterion was social class. This criterion is selected because the tiered hierarchy of king, nobles (estate holders) and commoners is still very much in existence within Tongan society. The 33 nobles and six matapule50, as estate holders, holds vital positions regarding applications for allotments and therefore an additional group of six estate holders were selected for this survey. Two estate holders hold estates on the central part of Tongatapu and two estate holders hold estates on the eastern part of Tongatapu and also some estates on the other islands of Tonga. The last two estate holders hold estates on the central and eastern parts of Tongatapu and also on the other islands of Tonga. e. Data analysis The data collected from semi-closed parts of the questions in the questionnaire was compiled to provide quantitative data. The views on the semi-open parts of the questions in the survey questionnaire were also recorded to provide the insights of the participants on each of the issues relating to women’s rights to land issue which was asked. All the data collected was analysed in detail. This analysis together with the results and outcome of the survey conducted are discussed in detail in Chapter 7 of this paper.
1.7 THESIS STATEMENT OF THE RESEARCH The thesis statement for this research is that - ‘There is still discrimination against Tongan women as regards to the rights to land because of their gender, traditions, social and cultural norms despite Tonga’s commitment to international, regional and national gender-equality instruments.’
Customs and ideologies of human rights sometimes do not see eye to eye. This is true particularly with some of the most contentious issues in the South Pacific Islands. Women’s right to land is one of these contentious issues. In particular this issue poses a threat to some aspects of the Tongan social system, culture and tradition and in particular the traditional role of Tongan women in Tongan society.
50 Also referred to in some literature as “Titular chiefs” or “Talking chiefs”. 17
1.8 RELEVANCE OF THE RESEARCH Although the laws of Tonga do not recognise its customs as part of the formal law, the practices of certain customs are still very much part of the Tongan culture and daily interactions of the Tonga people. One of these customs is the traditional role of women in a Tongan society or, to be more specific and relevant to this paper, the Tongan women’s traditional role in the “fahu system”, whereby Tongan women do possess positions of rank and authority in relation to their brothers’ children. In this aspect Tongan women are customarily held in higher social rank and in more respectable position than Tongan men in the “fahu system”. Because women do customarily hold this position in the Tongan social system promoters of women’s rights to land in Tonga have encountered some strong criticisms against their desire to increase the rights of Tongan women to land.
The courts of Tonga have joined most of the world in taking a human rights approach in their application of Tonga’s laws.51 This may be true in some aspects of human rights such as the rights of a child, rights of disabilities but in respect of women’s rights to land the courts seem to take a strict literal interpretation of the land laws. The latest reported court case in Tonga on some of aspects of women’s rights to land was in 1998 when a dispute was brought against a widow’s right to possess and occupy her late husband’s land.52
Tonga submitted its first Universal Periodic Report (referred to herein as ‘UPR’) on Human Rights in April 200853 (see Chapter 3 for more detail on the UPR). In this UPR Tonga reported, in general, on rights to land. No specific reference was made to women’s rights to land.54 Tonga accepted recommendations from various States about women’s rights in general, but none of these recommendations made particular reference to
51 Note the judicial recognition of some human rights in the cases of Tone & anors v Police (SC) 2004 Tonga LR 144, Tavake v Kingdom of Tonga [2008] Tonga LR 304, Fanugpo v R; Fa’aoa v R, [2010] Tonga LR 124, to mention a few. 52 Koloamatangi v Mangisi [1998] Tonga LR 72. 53 UN Human Rights Council, National Report submitted in accordance with paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 - Tonga, 10 April 2008, A/HRC/WG.6/2/TON/1, Available at http://www.unhcr.org/refworld/docid/485906b2a.html (Accessed 21 September 2012). 54 UN Human Rights Council, above n 53, p 8. 18 women’s rights to land.55 Tonga filed its second Universal Periodic Report on Human Rights with the Human Rights Council office of the United Nations. On 21 January 2013, Tonga’s report was reviewed at the 2nd meeting of the Council. 56 On its 10th meeting on 25 January 2013, the Working Group adopted the report on Tonga.57 This report is a major part of the commitment showed by the Government of Tonga in promoting human rights, in the international sphere. Despite Tonga’s confirmation of its commitment to promoting human rights, there are, as reported by Lord Vaea, Minister of Internal Affairs,58 still some issues lurking in the midst of the Tongan society that need careful consideration when it comes to difficult human rights issues. In the private sphere, there are numerous scholars and writers of Tongan history and law who have their own opinions as to whether Tonga should maintain the status quo with regards to the laws about women’s rights to land, or should allow Tonga’s land laws to be changed to promote gender equality with regards to land holdings.59 Further, the recent release of the 2008 Land Commission’s Final Report on June 1, 2012 contains some interesting recommendations and legislative amendments in promoting women’s land rights.
The instances mentioned in the preceding paragraphs clearly indicate that there is a great debate as to the desirability for change in the general attitudes towards the rights of women to land in Tonga. With Tonga joining the international arena in promoting human rights, the respect afforded to the “traditional roles” of Tongan women in the Tongan society has seen some changes. But the questions are – ‘Are the changes in Tonga’s traditions and practices regarding women’s traditional roles in the Tongan society significant enough to warrant women having more rights to land in Tonga? When Tonga made commitments to
55 Universal Periodic Review Information ‘Tonga’ (2008-2012). Available at www.upr- info.org/database/index.php?limit=0&f_SUR=176&f_SMR=All&order=&orderDir=ASC&orderP=true&f_Is sue=All&searchReco=&resultMax=25&response=&action_type=&session=&SuRRgrp=&SuROrg=&SMRRg rp=&SMROrg=&pledges=RecoOnly (Accessed 21 September 2012). 56 Human Rights Council, above n 29. 57 Human Rights Council, above n 29. 58 Human Rights Council, above n 29. 59 Scholars such as Imrana Jalal, ‘Land rights’ in Law for Pacific Women: A Legal Rights Handbook (1st ed. 1998) and Mosikaka Moengangongo, above n 4, to mention a few. 19 international, regional and national gender-equality instruments does this mean that Tonga will soon amend its land related laws to give more land rights to Tongan women?
1.9 THESIS STRUCTURE This paper consists of eight chapters. Each Chapter contains its own introduction and conclusion, apart from the substantial part of each Chapter.
Chapter 1 provides an introduction on the totality of this thesis by providing a brief history of the land laws during the reign of Tupou I. It also provides a brief description of Tonga’s traditions and culture in relation to land laws. This Chapter also provides a short discussion of the shortage of land issue, before a short literature review and description of research methodology for this thesis. It also provides a statement of the topic of this thesis, and the relevance of the topic and the research undertaken, before it concludes with an outline of the structure of this thesis.
Chapter 2 examines in detail the current land tenure system in Tonga based on Tonga’s Act of Constitution of Tonga and its Land Act and other related laws. To assist in understanding the current land tenure system, a brief history on the development of land laws during King George Tupou I’s reign is provided in this Chapter. The Chapter also discusses the four types of landholdings in Tonga.
Chapter 3 explains the rights of women to land which are provided in the Universal Declaration of Human Rights and other international and regional instruments to which Tonga is a party. The same Chapter also analyses Tonga’s national instruments that are pivotal in promoting women’s rights to land.
Chapter 4 considers the findings and recommendations of the 1983 Land Commission with reference to women’s rights to land. This Chapter provides a detailed examination of the work of the 1983 Land Commission including its terms of reference and the members of the Commission.
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Chapter 5 discusses what became of the 1983 Land Commission report after it was submitted to the Privy Council. It also discusses the laws that are related to establishment of a Commission and the process of a Land Commission’s report after it was submitted to Privy Council. This chapter also discusses the reasons why the 1983 Land Commission’s report are still not implemented.
Chapter 6 describes and analyses the findings and recommendations of the 2008 Land Commission with reference to women’s rights to land. This Chapter provides description and analysis of eight issues relating to women rights upon which the 2008 Land Commission deliberated and upon which it made recommendations. In this analysis, reference is made to two issues upon which the 2008 Land Commission deliberated at length but with regard to which, no recommendation was made.
Chapter 7 reports the findings and results of the survey undertaken by the researcher to ascertain public opinion on some of the 2008 Land Commission’s recommendation, which were made in relation to women’s rights to land. This Chapter also provides analysis of the data gathered from the survey.
Chapter 8 is the concluding chapter for this thesis. It first discusses in brief, the four factors that are related to the promotion of women’s rights to land in Tonga, ie the traditions, culture and social system, Tonga’s national policy, the commitment to international and regional gender equality instruments and the shortage of land for distribution. This Chapter concludes with some recommendations on the way forward for advancement of women’s rights to land in Tonga.
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CHAPTER 2: CURRENT LAND TENURE SYSTEM IN TONGA: ACT OF CONSTITUTION OF TONGA AND LAND ACT
INTRODUCTION Tonga’s current land tenure system is embedded in its 137 old written Constitution and 85 year old Land Act60. During the 19th century, the neighbouring countries of Tonga such as Fiji and Samoa, underwent changes to their land rights ‘which clearly reflected outside interests.’61 The distinction between freehold land system and customary or native title was speedily established with the momentous influence of colonial governments in these neighbouring countries. This “duality” clearly marked contrasts between individual alienable rights and ‘communal inalienable rights to land intended to protect the integrity of the “native society” and the livelihood of the indigenous population.’62 This dual system does not exist in the Tonga land tenure system.63 However a different dual system was created whereby there were estates of the nobles and allotments for the commoners.
This Chapter focuses on Tonga’s land tenure system entrenched in its Act of Constitution and Land Act. The first section provides a brief history of the development of laws during the reign of King George Tupou I. The second section briefly describes the relevant laws with regards to the royal estates and royal family estates whereas section three briefly summarises the relevant laws with regard to government/crown land. The fourth section describes the relevant laws with regards to the hereditary estates. The fifth section is a description of the relevant laws in respect of commoner’s allotments whilst the sixth section provides the relevant laws on leases, licenses and permits. The seventh section describes the relevant laws with regards to mortgages and the eighth section concludes this Chapter. This Chapter also provides the latest statistics with regards to registered allotments, leases and mortgages. It also provides the latest aerial satellite maps with
60 Above, n 3. 61 Alaric Maude, above n 35, p 157. 62 Alaric Maude, above n 35, p 157. 63 Alaric Maude, above n 35, p 157. 22 regards to the boundaries of the royal estates and royal family estates, the government/crown land and the hereditary estates.
2.1 BRIEF HISTORY OF THE LAND LAWS DURING KING GEORGE TUPOU I’S REIGN After fighting many battles during late 18th century and early 19th century, Taufa’ahau became King George Tupou I after he was baptized in 1831.64 Thus Tupou I is known in the Tongan history as its ‘Conqueror’. Between the years 1838 and 1875, Tupou I’s quest was to unify Tonga and ensure Tonga its independence. He attempted various times with laws to impose control over the people throughout Vava’u, Ha’apai, and Tongatapu, the islands of Tonga. The following is a brief history of these laws and their legal effect particularly on the development on the land tenure system of Tonga.
In May 16, 1838 Tupou I in council with four Chiefs of Vava’u65 promulgated the Vava’u Code. This Code was intended to be ‘laws for the people of Vava’u’66 but soon applied in Ha’apai and Tongatapu. It was the first written law applied in Tonga. It was a simple Code deriving its inspiration from biblical teaching.67 It contained eight sections. In general the Vava’u Code was concerned with eleven major issues included forbidding work on Sunday, prohibition of common crimes against property and life (murder, theft, adultery, fornication etc.), forbidding tattooing, selling liquor, and slavery.
In particular, the Vava’u Code exhorted the chiefs to divide and allocate some land to each of their subjects for their own use so ‘that each one may have means of living, of supporting his family procuring necessaries and contributing to the cause of God.’68 Thus one of this Code’s ultimate motives was that the ‘land should be brought into cultivation and planted’69 for the benefit of the owners and not the chiefs as previously practised. In
64 Ian C Campbell, above n 21. 65 These Chiefs were Jope Soakai as Steward or Governor of Vava’u, Osaiasi Veikune as the Chief Judge or Magistrate, Eliesa Kijikiji as Judge and Tiofilosi Kaianuanu as another Judge. 66 Code of Vava’u 1838 (Tonga). 67 Ian C Campbell, above n 21, p 85. 68 Section 3, above n 66. 69 Section 5, above n 66. 23 this regard Tupou I proclaimed in the Code that his people should live in peace with no argument. He also wanted the nobles to allow times for the people to work for themselves. In this Code the nobles were prohibited from marking the people’s bananas as the nobles’ bananas as was the nobles’ practice prior to this Code. In fact this Code prohibited the nobles from taking articles from the people as they please.70
The Code also provided for a wife’s right to her husband’s plantation and property when a wife was abandoned: ‘[i]n case a man leaves his wife and escapes, she shall claim his plantations and whatever other property he may have left.’71
The significant purpose of this Code was the making of all land available to all people to work and support themselves. Throughout the 1830’s and 1840’s, there was much political unrest throughout Tonga.72 There were external threats from other countries and also internal threats of discontentment from local chiefs. There was also much influence of Catholic priests on some of the high ranking chiefs in Tonga especially the last Tu’i Tonga73. The last Tu’i Tonga’s conversion to Catholicism and substantial influence of the Catholic priests put much pressure on Tupou I, who was then based at Vava’u and he had to travel back and forth between Vava’u and Tongatapu during the late 1840’s because of various plots against him.74 All these events were the background to the introduction of the second code in 1850.
The 1850 Code of Laws demonstrates the considerable influence of the Wesleyan Methodist missionaries, which reflected the alliance and trust Tupou I bestowed on the missionaries and their teachings at the time. Although the 1850 Code included some of the advisers’ wishes, Tupou I’s Christian values and growing concern for internal unity and external security underlay the major part of the Code. The Code was an elaboration
70 Section 4, above n 66. 71 Section 8, above n 66. 72 Ian C Campbell, above n 21, p 86 73 Tu’i Tonga was the first line of dynasty in the Tongan history with the last and 39th titleholder as Laufilitonga 74 Ian C Campbell, above n 21, pp 86-88 24 of the Vava’u Code, and was a much longer and more complicated set of laws. The two main distinct developments with this Code were first, the definition and prohibition of certain crimes, and second, the differentiation of the duties of chiefs and people and their obligations towards each other.75
The 1850 Code related to 15 main issues. One of the significant sections was the King’s assertion of his authority as the head of government declaring him to be ‘the root of all government in the land, it is for him to appoint those who shall govern in his land.’76 The most momentous development with regard to land was the prohibition of selling land to strangers (ie. foreigners).77 The prohibition of sale of land was a new development which resulted from the previous unfavourable encounters with foreign settlers in Tonga before the 1850 Code came into force.78
The 1850 Code did, however, permit the leasing of land to foreigners who in turn must ‘pay yearly according to the portion of land they hold, whether large or small; and it shall be with the Judges to demand such payment from the foreigners.’79 These leases were made with the government where government was the lessor, to whom foreigners paid annual rent over the leased land.80
Further, the Code specifically ordered the Chiefs and their people not to oppose the Code.81 In effect chiefs had to obey the laws just as the common people did. This issue could be seen as a major development in Tupou I’s mission to suppress the chiefly political structure and promote his kingship. In the years preceding the 1850 Code, Tupou I had experienced some discontent particularly by Catholic priests and higher ranking chiefs. After settling this discontent, Tupou I, in pursuing the interest of the newly found unification Tonga, travelled to Australia in 1853 to ‘see for himself the attainments of
75 Ian C Campbell, above n 21, p 88 76 1850 Code of Laws (Tonga), Section I(1). 77 Section XXIX, above n 76. 78 Ian C Campbell, above n 21, p 88 79 Section XL, above n 76. 80 Section XL, above n 76. 81 Section I(3), above n 76. 25
European civilization and government as a guide to the developments he should promote in Tonga.’82 From this visit his determination to distribute land to his people ‘was reinforced ... by witnessing in Sydney the existence of wealth and extreme poverty side by side.’83 During this visit: ‘He [Tupou I] was surprised to find poverty and to see some people sleeping in the parks of Sydney. This was a sharp contrast to the custom of his own country, which ensured hospitality and shared means of living for all. The most significant result of the visit was the king’s resolve that there should be no sale of land in Tonga, but only a leasehold system that would retain ownership in the government itself. Preventing alienation of land to any foreigners was a vitally important policy for Tonga’s future.’84
After witnessing the conditions in Australia, Tupou I wanted to avoid repetition of what he observed there. He wanted to create a land tenure system that provide land security for his people. The land tenure system in the 1862 Code of Laws was developed on that basis.
The 1862 Code of Laws, known as the Emancipation Edict, has often been referred to as Tonga’s first constitution. By this time Tonga had established an elaborate political structure. This law is most famous because of its proclamation of liberation. It had forty sections altogether, prescribing behaviour that was right and incumbent on Tongans. Its opening words made it apparent that this law was ‘instituted by the King and Chiefs of Tonga, in the Parliament House at Nuku’alofa.’85
The 1862 Code of Laws commanded all chiefs to abolish their authority over their people and their properties and set them ‘at liberty from serfdom ... and it shall not be lawful for any chief or person, to seize, or take by force, or beg authoritatively, in Tonga fashion,
82Ian C Campbell, above n 21, pp 88-89. 83 Dr. Elizabeth Wood-Ellem, ‘Submission to the Royal Land Commission of Tonga’ (7 July 2011) p 5. 84 Rev. Dr. A. Harold Wood, ‘Overseas Missions of the Australian Methodist Church, Tonga and Samoa’, (Vol. 1, 1975) pp 115-6. 85 Ian C Campbell, above n 21, p 90. 26 anything from any one.’86 This time, the law clearly meant that the chiefs and commoners were to ‘have the same legal rights in all respects.’87
The Emancipation Edict clearly showed Tupou I’s intention that the entire population ‘should owe loyalty directly to the King and not to their immediate chief.’88 Again the Emancipation Edit prohibited chiefs and people of Tonga to sell a piece of land to foreign people.89 Lands that were not used by the people, as farms, or for other activities were to revert to the Government, and if someone died leaving his land to no one in particular then the Government would claim such land.90
What is apparent from literature about Tupou I is that he considered that there were some elements of the Tongan custom which were ‘impediments to the future well-being of the people, and [he] decided to do away with them.’91 A fundamental keystone for the Tongan present land tenure system is George Tupou I’s vision that in order to have peace and stability in his kingdom, security of land tenure was necessary. Dr. Elizabeth Wood-Ellem, a prominent historian of Tongan history, in her submission to the 2008 Land Commission confirmed this vision when she wrote:- ‘There is clear evidence that Tupou I’s vision for Tonga was based on his recognition that security of tenure of smallholders was necessary to ensure that food would be assured and plentiful. This was his vision not only for peace and stability in the kingdom, which he would unite under a central government, but also of equality and equity for all Tongans.’92
The 1875 Constitution of Tonga was promulgated in November 1875. It established Tonga as a constitutional monarchy and declared the King as the Sovereign of all the chiefs and
86 Section XXXIV (2), 1862 Code of Laws (Tonga). 87 Ian C Campbell, above n 21, p 90. 88 Ian C Campbell, above n 21, p 91. 89 Section II, 1862 Code of Laws (Tonga). 90 Section XL, 1862 Code of Laws (Tonga). 91 Ian C Campbell, above n 21, p 91. 92 Elizabeth Wood-Ellem, above n 83. 27 people and the kingdom is his.93 There were two main aims of this Constitution. One was to sustain an efficient administration so as to achieve internal stability, and the second was to encourage the recognition of Tonga’s sovereignty by other countries.94
The 1875 Constitution was also designed to ‘safeguard the welfare of the country in perpetuity.’95 It is a much more complicated and comprehensive document than its predecessors and was divided into 3 main parts with a total of 132 sections. While the previous 3 laws were lists of laws, the 1875 Constitution was a statement of rules. These rules were for the government to observe while conducting its national affairs included the making and enforcing of the laws. While the remarkable background on the development of the 1875 Constitution is of much interest, it is outside the scope of this paper to further deliberate on them.
The 1875 Constitution was the first law to prescribe in detail the land tenure system for Tonga. It also provided Tupou I with power to appoint twenty nobles from the chiefs and allocate tracts of land to them.96 The rest of the land was divided into royal and government lands. These two landholdings are still in existence today.
The 1875 Constitution did not permit granting of land to commoners despite the King’s expressed intentions in the previous three codes, but rather it empowered nobles to lease land to people in return for an annual rental paid in cash.97 The chiefs and government were permitted to lease land and the maximum term of lease was ninety nine years.98 Rules of succession to both the throne and hereditary titles were established.99
93 Clause 47, above n 13. 94 Dr. Rev. Sione Latukefu, The Tongan Constitution – A brief history to celebrate its Centenary (1st ed., 1975) p 88. 95 Dr. Rev. Sione Latukefu, above n 94, p 89. 96 Clause 63(2) and Clause 48, above n 13. 97 Clause 128, above n 13. 98 Clause 111, above n 13. 99 Clause 35, above n 13. 28
Part III of the 1875 Constitution declared the government to ‘hold and possess the sites of all towns ... at present inhabited’100, forbade the sale of land,101 permitted leasing of lands,102 declared beaches as government property,103 provided the rules of succession to hereditary lands and provided for the reversion of lands with no legitimate heirs to government.104
The promulgation of the 1875 Constitution was thus a radical innovation. Apart from major changes this Constitution brought about to the authority in the government of Tonga, ‘the prime intention was to turn aside foreign criticism and avert confrontations that might cause Tonga to lose its independence.’105 It is also noteworthy to mention that since the promulgation of the 1875 Constitution there have been many changes to its content.
Under the original 1875 Constitution the rights of the tenants were not defined and they could not claim land by right. Accordingly, the ‘effectiveness of the constitutional provision depended on the generosity and sense of justice by the nobles.’106 The passing of the Hereditary Land Act 1882 was the result of almost two years of preparation and negotiation that sought to correct this weakness.
The Hereditary Land Act is of lasting significance in the history of Tonga. It is the first law to declare that all land, soil, inheritance and premises in Tonga belong to the King.
Under this new law, every male Tongan 16 years of age had a right to a town allotment and tax allotment. The landholding was to be registered with the government and became a perpetual lease for the registered landholder. The succession to these registered land allotments were to the eldest son and to his male descendants. Taxes were required to be
100 Clause 110, above n 13. 101 Clause 109, above n 13. 102 Clause 111 and Clause 112, above n 13. 103 Clause 119, above n 13. 104 Clause 125, above n 13. 105 Ian C Campbell, above n 21, p 99. 106 Ian C Campbell, above n 21, p 103. 29 paid to the government whereas rent was to be paid to the noble.107 Although there seemed to be much discontent from some of the high ranking chiefs before this new law came into force, Tupou I somehow managed to settle them.108 The immediate effect of this law was considerably less dramatic. Ian Campbell stated that: ‘By defining land tenure, however, the law also confirmed and emphasised something that had been made clear in the 1862 Code of Laws: that the old ranks of chieftainship had been abolished. Apart from the nobles, all Tongan men were of equal legal rank and all entitled to the same amount of land, and none was entitled to receive fatongia (tribute) or other customary exactions.’109
Tupou I passed away in 1893 after having conquered and unified Tonga. With his brilliance and humility, Tupou I prevented Tonga from being colonized. The profound changes in the laws during Tupou I’s reign resulted in his perseverance and vision for a unified Tonga.
On 23 August 1927 Tonga’s first ever consolidated Land Act110 came into force and it provides for all the land related matters in the Kingdom. This Act supplements the Act of Constitution of Tonga111 in providing who is entitled to land and in what circumstances such rights are to be exercised. All land in Tonga is the King’s property and he may at his own pleasure grant a portion or portions of these lands to the nobles and titular chiefs and such lands will become their respective hereditary estates. 112 Ownership of land in Tonga is not absolute but a life interest and such life interest is subject to strict rules of inheritance.113 The interest in leasehold land is only for a fixed term of years.114
107 Ian C Campbell, above n 21, p 103 108 Ian C Campbell, above n 21, p 103 109 Ian C Campbell, above n 21, p 103. 110 Above, n 3 111 Above, n 13. 112 Clause 104, above n 13. 113 Section 82, above n 3. 114 Section 19, above n 3. 30
As clearly seen from the brief history outline above, the present land tenure system is a product of a continuous moulding of the land laws since the 19th century in responding to what is the most suitable to the society at the time. There were major changes to the land laws in the history of Tonga and such changes resulted in the six different types of landholding provided for under the current land laws of Tonga.115 The six sections of this Chapter discuss these six landholdings.
2.2 ROYAL AND ROYAL FAMILY ESTATES The laws of Tonga fail to define “royal estates” and “royal family estates”. However it is clear from the land laws that these two estates differ. Royal estates are for the use of the Sovereign and they belong solely to the King whereas the royal family estates are for the use of members of the royal family.116
The royal estates are located throughout the islands of Tonga. They are mostly ‘api kolo.117 The rest are either villages or islands or parts of villages or islands. At present there are six located on Tongatapu, 13 on Vava’u, five on Ha’apai and Niuatoputapu, and one each on Niuafo’ou and ‘Eua.118 In total there are 27 pieces of land under this type of estate (see Appendix 1 for the list of royal estates).
The royal family estates include islands, villages and ‘api kolo of the royal family. At present there are 7 located in Tongatapu, 13 in Ha’apai, two in Vava’u and 1 in ‘Eua.119 In total there are 23 different pieces of land under the royal family estates (see Appendix 2 for the list of royal family estates).
The area for the royal estates and royal family estates cannot be accurately calculated by the Ministry of Lands because the survey in the 1970’s ceased before accurate calculations were made. According to the Legal Administrator of the Ministry of Lands ‘although this
115 “Land laws of Tonga” refer both to the Act of Constitution of Tonga and Land Act of Tonga. 116 Section 10, above n 3. 117 ‘Api kolo means residence including the land on which dwelling house is built. 118 Schedule II, above n 3. 119 Schedule III, above n 3. 31 survey was focused on the hereditary estates but if that survey was completed then the areas for all the three types of land in Tonga could also be accurately determined.’120
In June 2010 the Land Administration Project started with the Ministry of Lands. This project is fully funded by the Government of Tonga as Cabinet's response to the First Interim Report of the 2008 Land Commission, on the Ministry. One of the project’s mandate is compiling all the data that the Ministry has and to computerize these data.121
Maps 1, 2, 3 and 4 below shows the distribution of the three types of land (royal estates and royal family estates, crown land and hereditary estates) throughout the four main islands of Tonga being Tongatapu, Vava’u, Ha’apai and ‘Eua.
120 Rosamond Bing, above n 7. 121 Rosamond Bing, above n 7. 32
Map 1 named four areas as royal family estates and one royal estate. Some labeling on this map can be misleading for example, Schedule III of the Land Act shows that Kanokupolu on the western side of Tongatapu is a royal estate whereas the map shows that it is a royal family estate. Another controversial issue is the differentiating of which part of Mataliku is royal family estate and which part is royal estate because Mataliku is listed as royal estate and royal family estate on Schedule II and III respectively. On Map 1 the whole of Mataliku is labeled as royal family estate. In addition the island of Pangaimotu is listed under Schedule III of the Land Act as a royal family estate, while Map 1 shows that it is a royal estate instead. Whether they are royal family estate or royal estate, what can be implied from the labeling on Map 1 and the lists in Schedule II and III of the Land Act, is that these two types of estates are for the sole use of the King and the royal family. The reason why some of these estates are not shown in Map 1 is because they are of insignificant area, many of them being town allotments.
33
Map 1: Land Distribution in the island of Tongatapu
34
Map 2 shows one location of the royal estate, the village of Houma and one royal family estate, the village of Ta’anga on the island of ‘Eua. These are the only two areas that are listed in Schedule II and III of the Land Act as royal estate and royal family estate on the island of ‘Eua. Although the exact areas of these two estates are not known, as can be seen on the map, almost half of ‘Eua is a combination of royal estates and royal family estates.
Map 2: Land Distribution in the island of ‘Eua
35
Map 3 is the map of Ha’apai Island which does not show any royal or royal family estates. Schedule II indicates that 2 islands and 3 residential areas are royal estates whereas Schedule III indicates only one village as a royal family estate and 12 plots of land. It is assumed that the lack of accurate labelling of the royal estates and royal family estates is due to the small sizes of the land area.
Map 3: Land Distribution in the Ha'apai Group
36
Map 4 is the Vava’u Islands which shows 6 royal estates of which 2 are islands, 3 are villages and one is a royal family residence. The rest of the royal estates and royal family estates in Vava’u which are not shown in Map 4 are residential areas. As with the other island groups in the Kingdom, most of the royal estate and royal family estate listed in Schedule II and III of the Land Act have insignificant sizes and this is the reason why they cannot be identified on Map 4.
Map 4: Land Distribution in the Vava'u Group
37
2.3 GOVERNMENT/CROWN LAND Before commencing this part, clarification must be made in respect of two legal issues. The first in relation to the meanings of the two terms “Crown” and “King” in the land laws and the second issue is the question of whether the land laws of Tonga intend the Government to hold land. The reason why these two issues must be clarified is because these words “Crown”, “King” and “Government” are used in land laws without precise definition.
The meaning of “Crown” and “King” are sometimes synonymous and refer to the same thing, but the question is do these two words mean the same in the context used in the laws of Tonga. The term “King” is defined by the Interpretation Act [Tonga] to mean ‘His Majesty the King of Tonga or the Sovereign reigning for the time being over the Kingdom of Tonga.’122 On the other hand the word “Crown” is not defined in any of the Tongan statutes. In 1983 a Land Commission was established to look into land issues in Tonga (See Chapter 4 for detail on this Land Commission). The 1983 Land Commission, adopted the Oxford Dictionary definition for “Crown” as to refer to ‘the sovereign, his or her authority as the Supreme Governing power.’123 Further development on the meaning of “Crown” is also adopted in this paper to refer to ‘the government of a country, thought of as being represented by a king or queen.’124
The “Government” was described by clause 31 of the Constitution as - ‘The King, Privy Council and Cabinet Ministry; The Legislative Assembly; The Judiciary.’125
122 Section 2, Interpretation Act [Cap.1] Tonga. 123 Tonga Royal Land Commission, Report on its Review of All Practices, Usages and Laws Relating to Land, (1985), p 47. 124 A. S Hornby, Oxford Advanced Learner’s Dictionary of Current English (6th ed. 2000), p 280. 125 Definition of “Government” under clause 31 of the Constitution before it was amended in November 2010. 38
With the amendment to the Act of Constitution of Tonga in 2010, the new definition for “Government” is – ‘1st. The Cabinet; 2nd. The Legislative Assembly; 3rd. The Judiciary.’126
The 1983 Land Commission concluded that the term “King” and “Crown” have different meanings, whereas “crown land” and “government land” have the same meaning. These definitions are therefore adopted in this paper and the meanings mentioned above for each respective term will be adopted and used in their respective context. The words “crown land” and “government land” are used interchangeably in this paper.
All lands that are neither royal estates nor royal family estates nor hereditary estates are considered crown land.127 The holder of these lands is the Minister of Land.128 Part IX of the Land Act provides the Minister with the discretion to reserve crown and hereditary land for public purposes. All lands that are reserved for public purpose are deemed to be crown land, regardless whether they are on a hereditary estate or not.129 The King with consent of the Privy Council may summon a holder to give up possession of a land held by him if such land is required for public purposes.130 A holder can also voluntarily relinquish his land for public purposes.131 Compensation for resumed lands is to be paid by the Crown to the holder of such land.132
Maps 1-4 show some of the crown land throughout the whole Kingdom. The plots of crown land in each map show only the identified crown lands. However, land allocated
126 Clause 31 (as amended) in Act of the Constitution of Tonga (Amendment) (No. 2) Act which came into force on 24 November 2010. 127 Section 10, above n 3. 128 Section 2 (a), above n 3, whereby it defines that “landholder” or “holder” of crown Land is the Minister of Land. 129 Section 140, above n 3. 130 Section 141 (1), above n 3. 131 Section 141(3), above n 3. 132 Section 143, above n 3. 39 for public use, such as public roads, cemeteries and so forth, are not identified in these maps. At present the area for all types of estate in Tonga still cannot be accurately calculated because ‘a lot of work in this regard needs to be completed by the Ministry of Lands’ office.’133
2.4 NOBLES’ AND TITULAR CHIEFS’ HEREDITARY ESTATES The Act of Constitution of Tonga gives the King the right to distribute lands to nobles and titular chiefs at his own pleasure.134 At present there are 39 titles and each holds respective estates.135 Six of these titles are titular chiefs who are also known as matapule whereas 33 are nobles of the realm. Matapule or titular chiefs are the spokesmen and executive officers of the nobles.136 The six matapule who are also estate holders are of chiefly rank. Some of these estate holders hold one or more estate in one island of Tonga, while some hold estates in two or more islands throughout the Kingdom.
The Act of Constitution of Tonga provides for the succession to the estate holders’ titles and their respective estates.137 The rules of succession are restated in section 41 of the Land Act. In brief only legitimate children138 can succeed to the title and estates and male is preferred over female in succeeding to estate holders’ titles and their respective estates (see Appendix 3 for the list of estate holders). Successors to the title must be 21 years old in order to succeed to the title. 139 An estate holder who has been convicted of an indictable offence or has been certified by a medical officer to be insane or imbecile will cease to be an estate holder.140 In cases where the successor has not yet attained 21 years old, a trustee over the title and estates will be appointed by the King for the duration of the successor’s
133 Hon. Lord Ma’afu, above n 20. 134 Clause 104, above n 13. 135 Schedule I, above n 3. 136 Ian C Campbell, above n 21, p 276. 137 Clause 111, above n 13. 138 Legitimate children refers to children born after the marriage of his/her parents. Legitimate person also include ‘legitimated persons’ defined in section 2 and provided for in section 3 of the Legitimacy Act [Cap. 32] (Tonga). 139 Section 39, above n 3. 140 Section 41(b), above n 3. 40 minority.141 The eldest son of the estate holder is to succeed first, then the male heir of the eldest son. In the absence of a male heir of the eldest son, the second son succeeds and to the male heir of the second son. This rule prevails until the male line ends.142
In cases where there is no male heir of the estate holder the eldest female child shall succeed and heirs of her body and if she has no descendants, the second female child and the heirs of her body, and so on until the female line is ended.143 If a female is next in the succession line to the title, the male heir second in line will inherit the title and its respective estates until the female next in the succession has a male child, then title and estates must revert to this male heir when the male in possession of the title and estates dies. From the time when the male heir second in line inherits the title until it passes to the male heir of the female next in the succession line, the female has the legal right to occupy the town allotment and plantations lands appertaining to the title.144
In the absence of an estate holder’s legitimate children, the estate holder’s eldest brother inherits the title and estates, and the brother’s line will succeeds to the title. If the holder has no brother and only a sister or sisters, the sister will succeed provided there is compliance with the rule explained in the preceding paragraph about females only having the right of occupation of the town allotment and plantation lands appertaining to such title but not the title and hereditary estates.145
In the absence of legitimate children, brothers or sisters, the estate holder’s father’s brother will succeed the title, starting from the father’s eldest brother. The succession of the father’s brother’s line must also be according to the succession rule.146 In cases where the holder’s father’s has no brother then the succession rule applies to the holder’s father’s sisters. In cases where the holder has no legitimate heirs at all, the title and estate reverts
141 Section 40 (1), above n 3. 142 Section 82, above n 3. 143 Clause 11, above n 13 144 Clause 111, above n 13. 145 Clause 111, above n 13. 146 Clause 111, above n 13. 41 to the King until the King may confer the title and estate upon another person as successor to the title.147
An estate holder has a right to receive rents for every tax allotment on his estate and 90% percent from any lease rent of part of his estate.148 Estate holders have no authority to dispossess any holder of a tax or town allotment.149 However they may refuse permission to persons residing in other localities or holding a tax allotment elsewhere from holding an allotment on their estate.150 The estate holder must be consulted by the Minister prior to granting any tax allotment on his hereditary estate. In cases where the estate holder and Minister disagree, the Minister may grant the tax allotment to the applicant but such decision may be reviewed by the Land Court whose decision is final.151
An estate holder has the discretion to lease part of his estate but no more than 5 percent of the total area of that estate that has not been granted as allotments or in the opinion of the Cabinet, will not be required for allotments within the term of the lease.152 The 5 percent limitation on land that may be leased by the estate holder excludes areas leased to churches and charitable institutions. The estate holder is also permitted to reserve a portion of his estate for his personal use, such as his own plantation, grazing cattle or his residence.153
As mentioned earlier in this section, hereditary estates are spread throughout the Kingdom. Maps 1 to 4 shows the distribution of these estates. These maps clearly show that the area of each estate varies in size but the exact areas of these estates cannot be determined at this stage. There are two main reasons for this. The first reason is that the survey and drafting of Estate Deeds which commenced in mid-1970s ceased and no Estate Deed has been issued to date.154 Therefore the Ministry of Lands is not confident to provide
147 Clause 112, above n 13. 148 Section 31, above n 3. 149 Section 32, above n 3. 150 Section 35, above n 3. 151 Section 34, above n 3. 152 Section 33, above n 3. 153 Section 34, above n 3. 154 Rosamond Bing, above n 7. 42 information on the total area of the hereditary estates.155 The second reason being that there is a substantial portion of the hereditary estates which have been allocated to be crown land and are used for public purposes. Part of these portions are also affected by high water mark along the ocean side. Therefore the total land area for each estate holder cannot be accurately calculated.156
The same reasons were provided by the Ministry of Lands when it submitted its report to the 2008 Land Commission. The Ministry’s report was endorsed by the Ministry’s Chief Executive Officer, Dr. Halatuitutuia.157
When this Chapter was drafted, the project which has the mandate to compile the areas for all types of land, amongst other statistics for the Ministry of Lands was still incomplete, and statistics were being collated, entered and reconciled with the registers of the Ministry into the Ministry’s new computerized system.
2.5 COMMONERS’ ALLOTMENTS Town allotments and tax allotments are granted largely from hereditary estates and crown lands. There is nothing express in the Land Act to prevent the granting of these allotments from either the royal estates or the royal family estates and the Court of Appeal in Tukuafu v Latu & anor158 declared that the Appellant was entitled to a tax allotment situated in the royal estate of Kanokupolu. The Court of Appeal reasoned that the Land Court ‘erred to the extent that it found that the present law prevented or would prevent any part of a royal estate being land available for allocations as what it referred to erroneously as hereditary estate (meaning a tax or town allotment).’159 This same principle was applied in the case
155 Rosamond Bing, above n 7. 156 Rosamond Bing, above n 7. 157 Ministry of Land, Survey, Natural Resources and Environment, Final Report on Information Request from the Royal Land Commission, (30 September 2011) p 2. 158 (Unreported, Court of Appeal of Tonga, Appeal No. 5/2005, 15 August 2005, Webster CJ, Burchett J, Tompkins J, Salmon J). 159 Tukuafu v Latu & anor (Unreported, Court of Appeal of Tonga, Appeal No. 5/2005, 15 August 2005, Webster CJ, Burchett J, Tompkins J, Salmon J) p 9. 43 of Langafonua ‘a Fafine anors v Manuafetoa anors160 where the Land Court held ‘[t]he Sovereign could consent to the occupation of any part of his royal estate by any person without that person having been granted an allotment, lease, sublease or permit to reside thereon by the Minister of Lands.’161 In particular the Langafonua ‘a Fafine anors case implies that the Sovereign may grant to a person including women a right of occupation on a royal estate or a royal family estate.
The Land Act does not provide any definition for “allotment”, however the 2008 Land Commission (see Chapter 6 for detail on this Land Commission) defines “allotments” to mean ‘parcels of land which are divided into two kinds, being town and tax allotment.’162 This paper adopts this definition. The first part of this section describes the sections of the land law relating to allotments, and the second part provides statistics of how many allotments are already registered in Tonga.
Rights to allotment The Land Act provides that a Tongan male by birth of the age of 16 and above may be granted allotments provided he makes an application in the appropriate form.163 If the allotment for which the applicant applies is located on a hereditary estate, the estate holder must sign the Application Form before the application is lodged with the office of the Minister of Lands. In the case of crown land, the Minister of Lands signs the Application Form before the application can be submitted to process.164 Town allotments have a minimum area of 752 square metres165 and a maximum area of 7000 square metres.166 The tax allotments have a minimum area of 33,387 square metres167 and a maximum area of 50,000 square metres.168 The Head Teacher of a government primary school, provided
160 [2008] Tonga LR 215. 161 Langafonua ‘a Fafine anors v Manuafetoa anor [2008] Tonga LR 215. 162 2008 Royal Land Commission (Tonga), Final Report on its Inquiries into the Land Laws and Practices of the Kingdom, (2012) p 49. 163 Section 43, above n 3. 164 Form 11, above n 3. 165 Section 51(1), above n 3. 166 Section 47(1)(b), above n 3. 167 Section 47(1)(a),above n 3. 168 Section 46, above n 3. 44 that he is a male Tongan subject, must also be provided with 33,387 square metres for his own use upon application from the Minister of Education.169 The main purpose of this land is for the teacher to use as his plantation to grown crops for the use of him and his family.
The registration of an allotment is not indefeasible as in the Torrens System practiced in the neighbouring countries such as Fiji and Samoa. Registration of allotment can be successfully challenged on various grounds including ‘registration on wrong principles or under a mistake’170 or ‘registration based upon a lack of awareness of all the relevant facts’171 or ‘registration by virtue of succession if made after 12 months lapsed from the death of the allotment holder’172 and ‘fraud’.173
Areas for allotments Town allotments must not exceed 7000 square metres whereas tax allotments must not exceed 33,387 square metres.174 A Tongan male may be granted 50,000 square metres in one lot as tax allotment but any right he may have to a town allotment must be forfeited.175 In addition a noble may grant 40,000 square metres of allotment on his hereditary estate to be subdivided to 33,387 square metres for tax allotment and 7000 square metres for town allotment.176 In order to facilitate survey and subdivision, and subject to limited exceptions in the Act, the prescribed area for a town allotment may be exceeded by up to 12.6 square metres, and the prescribed area for a tax allotment may be exceeded by up to 505.9 square metres.177 It is unlawful for one person to hold two of the same kind of allotment.178
169 Section 52, above n 3. 170 Moa v Faka’osita, Afu Ha’alaufuli & Minister of Lands [1990] Tonga LR 195. 171 Fosita v Tu’ineau, Hon Fielakepa, Minister of Lands [1981-1988] Tonga LR 105. 172 Taufa v Vilingia, Tupouto’a & Minister of Lands [1981-1988] Tonga LR 85. 173 Kama v Kuli, Kalaniuvalu and Minister of Lands [1995] Tonga LR 117. 174 Section 47, above n 3. 175 Section 46, above n 3. 176 Section 47, above n 3. 177 Section 49, above n 3. 178 Section 48, above n 3. 45
Where right to allotment can be forfeited or extinguished A Tongan male to whom the Minister has granted an allotment must not, without reasonable cause, refuse to accept such land. If such person refuses without reasonable cause, then such person is not entitled to make further application.179 If a person who has been granted an allotment abandons such allotment for a period of more than two years, he must forfeit the same allotment to the holder of the estate or to the Minister as the case may be.180
A holder of an allotment may surrender part or whole of his allotment with the consent of the Cabinet. An allotment submitted to surrender will devolve upon the person who would be the heir of the holder and, in the absence of such person, the land must revert to the estate holder or Crown as the case may be.181
A holder of an allotment may exchange his allotment with another holder of an allotment subject to the approval of the Cabinet upon recommendation from the Minister. If the land to be exchanged is held by trustees for a minor, the Cabinet may permit such exchange if it is of opinion that the exchange is for the minor’s benefit.182
Annual rent of allotments The annual rent of 40 seniti is to be paid by the allotment holder to the estate holder if the allotment is situated on a hereditary estate or to the Minister if it is crown land.183 A widow or daughter who has a life interest in an allotment must also pay rent during the term of her life interest in the allotment.184 The estate holder must keep a roll of all the rent paid by the allotment holders on his estate.185 In default of payment of rent, the estate holder
179 Section 44 (1), above n 3. 180 Section 44 (2), above n 3. 181 Section 54 (1), above n 3. 182 Section 55, above n 3. 183 Section 63, above n 3. 184 Section 66, above n 3. 185 Section 65, above n 3. 46 or the Minister may sue the holder of the allotment to recover the due rent by civil proceedings. Rent unpaid for more than three years cannot be recovered.186
Ejectment of holder for not paying rent A holder of an allotment may be ejected from his allotment for not paying rent as prescribed by the law.187 The estate holder must inform the Minister in writing of the grounds for the allotment holder’s ejectment.188 Any holder who has been ejected from a tax allotment must not re-enter and take possession of such tax allotment.189 If the Court is satisfied that the grounds for ejectment have been proved, the tax allotment must revert to the estate holder or the Crown as the case may be.
Surrender of allotment A person who so desires to move permanently from a district to another district may apply to the Minister for a town or tax allotment from a hereditary estate or crown land in the district to where the holder intends to move.190
Holder’s duty to plant coconuts The Land Act imposes a legal obligation on the holder of a tax allotment to plant 200 coconut trees on his tax allotment.191 The holder will be prosecuted in the Magistrate Court if he fails to plant the 200 coconut trees.192 If sufficient evidence is produced in court, the Magistrate must first order the holder to comply with section 74 within a specific time. If the holder complies within the adjourned time, the holder will not be convicted.193 The holder may be exempted from his legal obligation to plant the 200 coconut trees due to some physical incapability or illness.194
186 Section 67, above n 3. 187 Section 68, above n 3. 188 Section 69, above n 3. 189 Section 70, above n 3. 190 Section 72, above n 3. 191 Section 74, above n 3. 192 Sections 75, above n 3. 193 Sections 76, above n 3. 194 Section 77, above n 3. 47
The Minister of Land must prepare an annual return of all grants of allotments in his district to show the names of the allotments holders, the date of grant or succession and the area and situation of each allotment. A copy of this annual return must be provided for the Director of Agriculture and Forests for assessing of compliance or non-compliance with section 74.195
Widow’s life interest A widow is entitled to a life interest in her deceased husband’s allotments. This right may be terminated upon her re-marriage or proof in legal proceedings that she committed fornication or adultery.196 If the deceased husband had failed to register the allotment according to the Act, that does not bar the granting of life interest on the allotments to the widow. If the Minister is satisfied that the deceased husband was the lawful holder of the allotment concerned then he must effect posthumous registration at the request of the widow.197 Any person who seeks to terminate a widow’s life interest on an allotment based on fornication or adultery must file a land proceedings in the Land Court.198
Succession rule Succession to allotments is clearly provided for in section 82 of the Land Act, which is very similar to the succession rule for title and to hereditary estate prescribed under clause 111 of the Act of Constitution of Tonga and section 41 of the Land Act. The succession to an allotment allows only legitimate children and descendants of the last lawful male holder after a widow’s life interest. The eldest son succeeds to the allotment before the male heir of his body. If the eldest son dies without a male heir, the land will devolve to the second son and to his male heirs.
195 Section 78 & 79, above n 3. 196 Section 80, above n 3. 197 Section 80, above n 3. 198 Section 81, above n 3. 48
If the second son dies without leaving a male heir the succession must go to the next eldest son of the deceased holder or the eldest male heir of his body and so on taking all the deceased sons in succession in order of their ages. If the holder dies without leaving any son or male heir of the body of a son then the unmarried daughter(s) of the deceased holder will succeed.
If there is more than one unmarried daughter then such daughters will inherit the allotment jointly. The rights of daughters will be terminated upon their marriage or proof in legal proceedings that they had committed fornication or adultery.
If the deceased holder dies without legitimate children, the allotment will descend to the deceased holder’s eldest brother but if such brother predeceased the deceased holder, to the eldest male heir of the eldest brother. If the eldest brother dies without a male heir, then the next eldest brother of the deceased holder will succeed or if he dies to the eldest male heir of his body. This rule will apply to the deceased holder’s brothers in succession in order of their ages. If the deceased holder dies without any legitimate children or brother, the allotment will pass to the deceased holder’s father’s eldest brother if he is still alive, or to male heir of his body if otherwise. If the deceased holder’s father’s eldest brother dies and no male heir of his body, then to the next eldest brother of the deceased holder’s father or if he is dead, to the eldest male heir of his body. This rule will continue to all the brothers of the deceased holder’s father in the order of their respective seniority. In default of a male heir to the deceased holder, the allotment will revert to the Crown or the estate holder as the case may be.199
The fact that an allotment has not been registered by the deceased holder according to the Land Act shall not in itself bar the grant to an heir. If the Minister is satisfied after making inquiry that the deceased was the lawful holder of the concerned allotment, the Minister must effect posthumous registration upon a request from the heir.200
199 Section 82 & 83, above n 3. 200 Section 82, above n 3. 49
Except in cases of a son or grandson of the deceased holder, a person who is entitled to succeed to a deceased holder’s allotment but who is already a registered holder of an allotment of the same kind as that of the deceased holder is not permitted to succeed to such allotment. A son or grandson of a deceased holder, if he is already a holder of an allotment of the same kind of that of the deceased holder, is entitled to choose between the deceased holder’s allotment and the allotment already registered under his name.201
If the son or grandson of a deceased holder elects to hold the deceased holder’s allotment over the son or grandson’s allotment and surrender the allotment of the same kind already held by him, the surrendered allotment shall be granted to the eldest son of the person surrendering it. However if such son is still under the age of 16 years, then the surrendered allotment shall be granted to one or more trustees appointed by the Administrator of the deceased holder’s estate, who will hold the land until the son becomes of age. In default of any son, the land shall be granted to the eldest brother of the person surrendering the allotment provided that such brother is of age and does not hold a registered allotment of the same kind. In default of any brother the surrendered allotment must revert to the Crown or estate holder as the case may be.202
Claim on behalf of the widow or the heir must be lodged with the Minister or his Deputy within 12 months of the holder’s death. In default, the allotment concerned reverts to the Crown or estate holder as the case may be.203 Allotments that have been reverted to the Crown may be re-granted by the Minister, unless required for Government purposes.
The latest data with regards to the number of registered allotments in the Kingdom was recently published in the Ministry’s 2011 Annual Report as shows in Table 1 below.
201 Section 84, above n 3. 202 Section 86, above n 3. 203 Section 87, above n 3. 50
Table 1: TOTAL NUMBER OF REGISTERED ALLOTMENT IN THE KINGDOM OF TONGA FOR THE YEARS 2010-2011204
Tax Allotment Town Allotment
2010 2011 2010 2011
Tongatapu & ‘Eua 8226 8286 12363 12536
Ha’apai 3505 3512 2485 2488
Vava’u 4281 4298 2024 2061
TOTAL 16096 17085
For each of the island groups of Tonga, there is a slight increase in the registration for both types of allotments between the year 2010 and 2011.
The total area for all the registered allotments in Tonga cannot be accurately calculated by the Ministry of Lands for reasons that were stated in the Ministry’s report to the 2008 Land Commission as follows: ‘The table includes registered allotments that are recorded as zero (0) land area. The table includes registered allotments that have no recorded land area or location. The table includes registered allotments where the previous land holder(s) has not been deregistered from the record – these landholders having already died or surrendered their allotments. Therefore there may be multiple registers on one allotment which is simply added on as a new register.’205
The above three reasons were confirmed in an interview with the Land Administrator of the Ministry of Lands in which she stated that the ‘inability to accurately calculate the
204 Excerpt from Ministry of Lands, Annual Report 2011 (2011), p22. 205 Ministry of Land, Survey, Natural Resources and Environment, Final Report on Information Request from the Royal Land Commission, (30 September 2011) p 3. 51 land areas that have been registered is in fact one of the main challenges in the Ministry’s attempt to compile and computerize its data.’ 206
In fact the areas of allotments provided by the Ministry of Lands in September 2011 to the 2008 Land Commission ‘reflects more land being registered than it actually is.’207 As the records of the Ministry of Lands stand as of now, the total area for either town or tax allotments, or a combination of both cannot be accurately calculated. This is one of the major challenges in the Ministry’s mission to achieving accurate calculation of the total area for each of the three land types in the Kingdom.
2.6 LEASES / LICENSES / PERMITS A leasehold system was incorporated into the Tonga land tenure system as one of the results from King George Tupou I’s visit to Australia in 1853.
Royal and royal family estates may be leased by or from the King for projects of general public interest and benefit.208 Estate holders can lease not more than 5% of the total area of their estates provided that such land will not be required for allotments and such lease must be with the Cabinet’s approval.209 Allotment holders may lease their allotments provided that that the consent of the Cabinet is obtained, the holder is not a widow of the deceased holder, and the land is free from mortgage.210 The term of a lease for the whole or part of a tax allotment must not exceed 20 years211 whereas for the town allotment the lease must not exceed a period of more than 99 years without the prior consent of the King and Privy Council.212
206 Rosamond Bing, above n 7. 207 Rosamond Bing, above n 7. 208 Section 10, above n 3. 209 Section 33, above n 3. 210 Section 56(i), (ii) & (iii), above n 3. 211 Section 56(iv), above n 3. 212 Section 124(3), above n 3. 52
The Act allows a lessee to take on lease only ten tax allotments and five town allotments at one time 213 Lease rentals for allotments are paid to the Minister of Lands who deducts 10% as a collection fee whereas the rest is paid to the lessor.
Approval and registration of leases
The Minister of Lands is the representative of the Crown with regard to all matters concerning the land in Tonga.214 The Minister has powers to grant allotments, leases and renewals of leases; issuing of permits to allow foreigners to hold or occupy land held by a Tongan; and approval of mortgages.215
Leases for a period of more than 99 years cannot be granted without the prior consent of the King and Privy Council.216
Upon the death of a lessor before the lease term expires, the widow of the lessor is entitled to a life interest in the lease for the remaining period and is bound by the terms of the lease.217 In cases where there is no widow, the leased allotment devolves upon the heir who will be bound by the terms of the lease, receive the rental due for the remaining lease period and pay the rent on the lease allotment.218 If there is neither a widow nor an heir, the leased allotment reverts to either the Minister or the estate holder who will be bound by the terms of the lease and also receive the rental due.219
If during the lease period the allotment holder surrenders the same allotment, the heir succeeds to the allotment is bound by the terms of the lease, receives the rental and pays rent.220 In cases where there is no heir, the allotment reverts to either the Minister or the
213 Section 61, above n 3. 214 Section 19, above n 3. 215 Section 19, above n 3. 216 Section 124(3), above n 3. 217 Section 58(i), above n 3. 218 Section 64, above n 3. 219 Section 58, above n 3. 220 Section 59, above n 3. 53 estate holder as the case may be and the estate holder or the Minister is bound by the terms of the lease and receives the rental for the period before the lease expires.221
During the lease period the lessee is responsible for the planting and the upkeep of the allotment. If a lessee is convicted for not planting and maintaining 200 coconut trees, his/her right is automatically forfeited, 222 however that person is still bound to pay rent until the expiration of the original lease.223
No lease agreement is permitted to have a clause conferring an automatic right of renewal or an option to renew a lease.224 Renewal of lease for a whole or part of a tax allotment must obtain consent from Cabinet, and the renewal period must not exceed 10 years.225 No alien is to occupy or reside on leased land without first obtaining a permit to do so from the Minister.226 A holder is not to permit an alien to occupy part of his land unless such alien has been granted a lease or permit.227
Upon the expiration of a lease if the lessee applies in writing for a renewal within the stipulated time and the lessor does not agree for a renewal of such lease the Minister upon direction from Cabinet, may grant renewal of such lease.228 This section only applied to leases where the period does not exceed 99 years. Leases for more than 99 years must obtain consent from His Majesty in Council.229 However renewal of an expired lease is not to be granted if a new lease application that includes part of the leased land has been received by the lessor 6 months before termination of the expiring lease.230
221 Section 59, above n 3. 222 Section 74, above n 3. 223 Section 62, above n 3. 224 Section 60, above n 3. 225 Section 60, above n 3. 226 Section 14, above n 3. 227 Section 15, above n 3. 228 Section 36(1), above n 3. 229 Section 36(1), above n 3. 230 Section 36 (1), above n 3. 54
Tongan leases The term “Tongan lease” is not defined in the Land Act, but Part V, which is headed “Tongan Leases,” prescribes that these leases are for Tongans other than tax allotment holders, as follows: ‘Any Tongan subject of full age who does not hold a tax allotment may apply to the Minister … for a lease of a parcel of bush land to be granted to him.’231 The application for such lease must be made to the Cabinet via the Minister of Lands.232 Section 92 directs that a Tongan lease ‘shall not exceed 50 years.’233 These sections relating to Tongan leases are to be considered in the light of one of the key factors for the distribution of land in Tonga – to provide the people of Tonga with not only a home, but also land to grow their food.
It can also be seen from the remaining sections under Part V that the purpose of Tongan leases is to allow cultivation and harvesting of food products from the bush land. The involvement of the Director of Agriculture and Forests in inspecting and reporting the cultivation on such leases strengthens the indication that Tongan leases are meant for Tongan subjects only. There are three distinct features which distinguish the Tongan lease from the 99 years old lease. These distinct features are that the Tongan leases: (i) are meant for the Tongan subjects only, and not foreigners; (ii) are of tax allotment only, and not town allotment; and (iii) maximum lease period is 50 years only.
Tongan leases must be in the prescribed form and must obtain the Cabinet’s consent. A widow is not permitted to lease her deceased husband’s land.234 Renewal of Tongan leases is subject to fulfillment of conditions, such as payment of rent and declaration of methods of cultivation.235 No alien is permitted to occupy or reside on a Tongan lease land unless such alien has obtained permission from the Minister as provided under section 14 and 15.
231 Section 90, above n 3. 232 Section 90, above n 3. 233 Section 92, above n 3. 234 Section 89, above n 3. 235 Section 92, above n 3. 55
The Minister is to give 21 days’ notice to a holder of a tax allotment whose area is more than the statutory area, informing the holder of subdivision of such land. If such holder has made improvements over a greater area than the statutory area, the holder may receive a lease for all or part of such improved portion.236
Before granting a Tongan lease the Director of Agriculture and Forests has the duty to inspect the land and report on the state of cultivation on the land proposed to be subject to a Tongan lease and/or the statutory allotment.237 The Director’s report together with the application for Tongan lease, must be submitted by the Minister to the Cabinet. It is the Cabinet which has the discretion to authorize the Minister to grant a Tongan lease.238
With regard to government land, the Minister under direction from Cabinet may grant renewal of a Tongan lease after the holder of an expired Tongan lease has made the necessary application in writing, but the renewal period must not exceed the term of the expired lease. This provision only applies when original lease does not exceed 99 years. Tongan leases for more than 99 years must first obtain consent from His Majesty in Council.239
Renewal of Tongan leases will only be granted when all rents due have been paid and terms of the expiring lease have been performed.240
Registration of leases/licences/permits etc Applications for leases, sub-leases, transfers and permits must be in the prescribed form in Schedule IX and must contain a diagram of the land concerned. Every application must be signed by the lessee, and by the Minister, and countersigned by Cabinet Ministers.241
236 Section 91, above n 3. 237 Section 94, above n 3. 238 Section 95, above n 3. 239 Section 36 (2), above n 3. 240 Section 36(3), above n 3. 241 Section 124, above n 3. 56
Except in relation to a sub-lease not exceeding a term of 3 years, every lease, sub-lease, transfer or permit must be registered in order for it to have legal effect.242 A permit for a person other than the landholder is not transferrable and will cease to be effective upon the death of either the grantee or the landholder on the date the permit is issued.243
The Minister has the duty to record and keep in his office all the dealings in relation to a lease, sub-lease, transfer or permit.244 There must also be a memorial endorsed on the instrument under which the grantor of the transfer or sub-lease holds. In case of a surrender of a lease the Minister must endorse the word ‘surrendered’ on the duplicate lease or sublease filed in his office. Such endorsement shall be signed by the lessee and the holder of estate or allotment in the presence of the Minister. The Minister must also affix his signature and the seal of his office to such endorsement.245
Any document affecting a lease must be registered for it to be valid. For the registration to be effective, the document together with the original lease or sublease must be delivered to the Minister. The Minister must make a true copy of these documents before entering an endorsement on the original copy of some memorial to the effect of the document.246 There are prescribed fees for all applications to register land or documents relating to land holding.247
When two or more instruments, which were executed by the same proprietor, and which purport to transfer or encumber the same land, are presented to the Minister at the same time for registration and endorsement, the Minister must register and endorse the instrument presented to him by the person who shall present to him the lease, transfer or sub-lease (as case may be) of such land.248
242 Section 126, above n 3. 243 Section 125, above n 3. 244 Section 127 & 128, above n 3. 245 Section 130, above n 3. 246 Section 132, above n 3. 247 Section 133, above n 3. 248 Section 134, above n 3. 57
The register of documents affecting leaseholds is open to search and inspection subject to fees paid to the Ministry. The Minister has a duty to keep indices in alphabetical order of all the registers.249
In the records of the Ministry of Lands there is no distinction between leases and Tongan leases. The lease records of the Ministry of Lands include all types of leases on royal estate, royal family estate, hereditary estate and allotment. Table 2 below provides the total number of leases in the Kingdom for the years 2010 and 2011.
Table 2: TOTAL NUMBER OF LEASES FOR THE KINGDOM OF TONGA FOR THE YEARS 2010 -2011250 Leasehold
2010 2011
Tongatapu & ‘Eua 3902 4049 [4149]251
Ha’apai 221 226
Vava’u 631 667
TOTAL 3754 4942
From Table 2 it is apparent that there is a significant increase in the number of leases that were registered in the island group of Tongatapu. In fact there was a 28 percent increase in the number of leases in the Tongatapu island group from the year 2010 to the year 2011. The number of leases registered for the island groups of Vava’u and Ha’apai also increased.
249 Section 135 & 136, above n 3. 250 Excerpt from the Ministry of Lands, Annual Report 2011, p 22. 251 The total leases for the Kingdom in 2011 was 4149 instead of 4049 as stated in the table in the Ministry of Lands’ Annual Report 2011. The number 4149 is obtained when the “New Leases” of 247 for the Kingdom for the year 2011 was added to the total leases from the year 2010 which was 3902. 58
For the year 2011, the Ministry of Lands reported that there were a total of 194 new leases registered for the Tongatapu island group, 36 for Vava’u, five for Ha’apai and 12 for the two Niuas, which makes a total of 247 new leases throughout the Kingdom.252 These leases are for various purposes such as for charity works, religious bodies, residential and farming.
As with the total areas for allotments, the total areas for leases cannot be accurately calculated, and for the same reasons that underlie the inability to accurately calculate the areas of allotments.
2.7 MORTGAGES A system of mortgages to provide securities for loans was introduced into the Tonga land tenure system in 1976.253 Part VI of the Land Act is concerned with the mortgaging of tax allotments, town allotments and hereditary estates.
Mortgages in Tonga do not take the form of transfers of land or of charges over land, as in neighbouring countries, but take the form of a mortgage lease, where the lease of land is provided as security for a debt.254 The parties to a mortgage are bound by the terms in the deed.255 Mortgages are not allowed to be granted unless they are to be used for the purpose of improving the allotment on which the mortgage is to be granted.256 Applications for mortgages must be made to the Minister of Lands in the prescribed form.257 Variations to mortgages are permitted so long as they are drafted in a memorandum or an instrument which the mortgagee must sign, and then register such memorandum or instrument in the register in the Minister’s office.258 Assignment of mortgages is also permitted, provided it is in the prescribed form and made by the mortgagee. The approval of the mortgagor can be dispensed with, provided the Minister
252 Ministry of Lands, Annual Report 2011 (2011), p 21. 253 Act 18 of 1976 (Tonga). 254 Section 96 & Schedule VIII, above n 3. 255 Section 110, above n 3. 256 Section 100 (iii), above n 3. 257 Section 102, above n 3. 258 Section 104, above n 3. 59 consents to it.259 Every assignment of mortgage must be registered according to the prescribed format.260 Unless the assignment is registered, it will not be effective.261 Any documents affecting mortgages must be registered for them to be effective.262
The term of mortgage leases must not exceed 30 years.263 There are some financial institutions which are eligible to be a mortgagee, and these also include the government and such other persons or bodies corporate or incorporate as may be approved by His Majesty in Council.264 A lessee may mortgage part or all of the leased land subject to conditions.265 An estate holder may mortgage not more than a 5% of the total area of the hereditary estate, in addition to the 5% that can be leased.266 Every mortgage must be registered for it to be recognized in law. The register of mortgages is kept in the Minister’s office.267
When a mortgagor has discharged his obligations to the mortgagee under a mortgage, the mortgagee must grant such mortgagor a discharge from that mortgage and hand back to the mortgagor the mortgage deed. Every discharge of a mortgage must be registered after the mortgagor or his solicitor has certified it.268 Upon default of the mortgagor in relation to his obligations under the mortgage, the mortgagee must notify the Minister of Lands and the mortgagor of its intention to take possession of the mortgaged land. After taking possession of the land, the mortgagee may either keep possession of the land or sublease the land for the unexpired term.269
259 Section 105, above n 3. 260 Section 106, above n 3 261 Section 106, above n 3. 262 Section 107, above n 3. 263 Section 100 (iv), above n 3. 264 Section 98, above n 3. 265 Section 99, above n 3. 266 Section 101, above n 3. 267 Section 103, above n 3. 268 Section 108, above n 3. 269 Section1 109, above n 3. 60
The total number of new mortgages registered in 2011, which is the latest statistics found in the Ministry of Lands, were 226 and 178 were approved by the Minister of Lands. 270 All mortgages of which women are mortgagees are of leased land. As with the earlier sections, the total area of mortgaged land cannot be accurately calculated.
2.8 CONCLUSION Women’s rights to land in Tonga, as compared with men’s rights to land, are significantly limited. Data from the Ministry of Land, Survey, Natural Resources and Environment is not conclusive as regards the areas of the various types of land holding in Tonga. The concern of the Ministry is that although there is much pressure to enable women to register and hold land in Tonga, the amount of land that is available is insufficient for distribution to both genders. There is still a great deal of work to be done in collating and reconciling the Ministry’s data so that more reliable statistics can be achieved in the future. The area of vacant land has not been accurately calculated. It is this author’s opinion that unless accurate calculations of land areas and conclusive data are collected by the Ministry of Land, suggestions to improve women’s rights cannot be as productive and effective as one would want them to be.
270 Ministry of Lands, above n 252. 61
CHAPTER 3: INTERNATIONAL, REGIONAL AND NATIONAL GENDER EQUALITY INSTRUMENTS TO WHICH TONGA COMMITS ‘Tonga stands proud as the leader in the Pacific Region in human rights and is the top third in the world in this regard. Tonga prides itself on being an active member of the human rights international community and so far has fulfilled some of its responsibilities as part of its international obligations.’271
INTRODUCTION At the international level, Tonga has acceded to two core human rights conventions. The first is the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the second is the Convention on the Rights of the Child (CRC).272 However these two conventions do not relate to gender equity and equality. This section focuses on the important and relevant international, regional and national policies and platform actions to which Tonga has declared its commitments.
The first section of this Chapter describes four international policies, goals and platform actions relevant to women’s rights to land to which Tonga has made commitments. The second section discusses the regional policy and working instruments relevant to women’s rights to land to which Tonga has so far made commitments. The third section describes Tonga’s relevant national policies and action programs. The fourth section considers the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and describes its importance in promoting women’s rights to land and its development or non-development in Tonga. The last section contains some concluding remarks for this Chapter.
271 Tonga Attorney General Neil Adsett, ‘Opening Speech’ (Speech given at Tonga Human Rights Workshop –UPR, 13 March 2012). 272 Convention on the Rights of the Child 1989 (CRC) (Entered in to force 2 September 1990, acceded to by Tonga 6 November 1995) UNTS. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en (Accessed 8 October 2012) 62
3.1 RELEVANT INTERNATIONAL POLICIES The Tongan government refused to ratify the Convention on the Elimination of All Forms of Discrimination against Women (the Convention) in 2009. The Convention is the most fundamental international instrument in promoting women’s rights. The Prime Minister, on behalf of the Cabinet, in the Legislative Assembly said that the main reason for non- accession was that some of the articles in the convention directly conflict with the anga fakafonua.273 The Prime Minister stated that accession to CEDAW will definitely require changes to the law relating to inheritance of land.274 Although Tonga made and continues to make commitments to some human rights international policies, only a few are directly related to women’s rights to land. This section discusses the international policies relevant to women’s rights to land to which Tonga pledged commitment.
3.1.1 Universal Declaration of Human Rights The Universal Declaration of Human Rights (Universal Declaration) was adopted by the United Nations General Assembly General Assembly in 1948.275 It was the first time in world history that an international instrument set out fundamental human rights to be universally protected. The Universal Declaration was the result of the experience of the Second World War.276 It was a ‘milestone document in the history of human rights’ and declared ‘a common standard of achievements for all peoples and all nations.’277 Despite its non-binding nature, this international instrument is agreed by the international community ‘to be the foundation of international human rights law.’278 Its significance was that it inspired various legally binding international human rights treaties including but not limited to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and CEDAW.
273 ‘Anga fakafonua’ can be defined as customs or the normal practice of a country. 274 Legislative Assembly of Tonga, Hansard Record No. 31/2009 (17 September 2009) p 23. 275 In GA Res 217A (III) (10 December 1948). Available at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement (Accessed 8 October 2012). 276 United Nations ‘The Universal Declaration of Human Rights’. Available at http://www.un.org/en/documents/udhr/history.shtml (Accessed 2 October 2012). 277 United Nations, above n 276. 278 United Nations, above n 276. 63
The Universal Declaration is an inspiration in addressing injustices. It guides us in our efforts to accomplish universal enjoyment of human rights including women’s rights to land. It represents a ‘universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone and that every human being is born free and equal in dignity and rights.’279
Another fundamental value of the Universal Declaration is the fact that its achievements throughout the years resulted in the drafting of the two main international human rights Covenants referred to earlier, the ICCPR and the ICESCR. These two Covenants have binding natures on the state members. They each developed most of the rights already enshrined in the Universal Declaration and together with each of their respective Protocol, plus the Universal Declaration, comprise the International Bill of Rights (IBOR).
By adopting the Universal Declaration, Tonga internationally declares that it is prepared to promote human rights including women’s rights. It is internationally recognised as Tonga’s commitment to human rights values that are universally accepted by most United Nations country members. Tonga therefore has acknowledged the ‘inherent dignity and of the equal inalienable rights of all members of human family is the foundation of freedom, justice and peace of the world.’280
Articles 1, 7 and 17 of the Universal Declaration directly relate to women’s rights to land and form the basis for women’s rights. Article 1 lays down the philosophy on which the Universal Declaration is based: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’281
279 United Nations ‘The foundation of international human rights law’. Available at http://www.un.org/en/documents/udhr/hr_law.shtml (Accessed 2 October 2012). 280 United Nations, Declaration of Human Rights. Available at http://www.un.org/en/documents/udhr/index.shtml (Accessed 13 October 2012) 281 United Nations, above n 280. 64
The Universal Declaration declares the equality in dignity and rights for every human being. Being inalienable and inherent, human rights are part of human beings.
Article 7 declares the fundamental rights of equality before the law and the entitlement of all human beings, without any discrimination to equal protection under the law: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’282
Article 17 declares the rights to own property alone or in association with others in its declaration: ‘(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.’283
It is relevant to mention that Tonga has neither ratified nor acceded to either the ICCPR or the ICESCR. In addition to commitments to the Universal Declaration, Tonga has also made commitment to three other international policy guidelines and platforms for action which are described below.
3.1.2 Beijing Declaration and Platform for Action 1995 The Beijing Declaration and Platform for Action 1995 (Beijing Declaration) is a platform for action that was adopted by consensus in the World Women’s Conference in Beijing, China, in 1995. It identifies 12 critical areas of concern for gender equality and women’s empowerment. It embodies the international community’s commitment to the advancement of women in ensuring that a gender perspective is reflected in all policies and programmes at the national, regional and international levels. It is the global community’s most comprehensive policy document for the empowerment of women and
282 United Nations, above n 280. 283 United Nations, above n 280. 65 gender equality. The governments who adopted the Beijing Declaration and the United Nations agreed to promote “gender mainstreaming” in their respective policies and programmes. The Beijing Declaration has been acknowledged by many writers as – ‘ ... the strongest statement of consensus on women’s equality, empowerment and justice ever produced by the world’s governments. It is a vision of transformation—of what the world can be for women and men, for this and future generations.’284
In its National Policy for Gender and Development 2001 (National Gender Policy), Tonga declares that ‘at global level it commits to various action plans including the Beijing Declaration.’285 In the Beijing Declaration the adopting countries, including Tonga, declare that they are determined to: ‘Ensure women's equal access to economic resources including land, credit, science and technology, vocational training, information, communication and markets, as a means to further the advancement and empowerment of women and girls, including through the enhancement of their capacities to enjoy the benefits of equal access to these resources, inter alia, by means of international cooperation; …’286
In relation to each of the 12 critical areas in the Beijing Declaration, there are various strategic objectives and respective actions to be implemented by allocated institution. Only two of these critical areas directly relate to the promotion of women’s rights to land and they are as follows:
284 Women’s Environment & Development Organisation, Beijing Betrayed – Women Worldwide Report that Governments have failed to turn the Platform into Action. (March 2005). Available at http://www.choike.org/documentos/beijing_betrayed/beijing01.pdf (Accessed 8 October 2012). 285 Kingdom of Tonga, National Policy on Gender and Development (2001) p1. 286 Beijing Declaration and Platform for Action Fourth World Conference on Women (Beijing Declaration) (Adopted in 15 September 1995, adopted by Tonga on 15 September 1995). Available at http://www.unesco.org/education/information/nfsunesco/pdf/BEIJIN_E.PDF (Accessed 8 October 2012). 66
A. Women and poverty The adopting countries including Tonga are called by the Beijing Declaration to take strategic action with regard to the ‘persistent and increasing burden of poverty on women.’287 For this critical concern the Beijing Declaration sets out four main strategic objectives where this concern can be tackled. Under each of these four strategic objectives, actions are prescribed for governments to effect at a national level. To this effect the Beijing Declaration recites that: ‘Women's poverty is directly related to the absence of economic opportunities and autonomy, lack of access to economic resources, including credit, land ownership and inheritance, lack of access to education and support services and their minimal participation in the decision-making process. Poverty can also force women into situations in which they are vulnerable to sexual exploitation.’288
It further explained that in order to overcome women’s poverty particularly in developing countries: ‘... the productive capacity of women should be increased through access to capital, resources, credit, land, technology, information, technical assistance and training so as to raise their income and improve nutrition, education, health care and status within the household. The release of women's productive potential is pivotal to breaking the cycle of poverty so that women can share fully in the benefits of development and in the products of their own labour.’289
The Beijing Declaration firmly states that the first strategic objective to overcome the concern for women’s poverty is to, ‘[r]eview, adopt and maintain macroeconomic policies and development strategies that address the needs and effort of women in poverty.’290 It urges governments to take appropriate actions to minimise or eliminate poverty amongst women. The governments are the target implementing body under the first strategic
287 Above n 286, p 15. 288 Above n 286, p 17. 289 Above n 286, p 18. 290 Above n 286, p 18. 67 objective. They are urged to implement the following actions in respect of minimising poverty amongst women: ‘(i) Enable women to obtain affordable housing and access to land by, among other things, removing all obstacles to access, with special emphasis on meeting the needs of women, especially those living in poverty and female heads of household; (ii) Formulate and implement policies and programmes that enhance the access of women agricultural and fisheries producers (including subsistence farmers and producers, especially in rural areas) to financial, technical, extension and marketing services; provide access to and control of land, appropriate infrastructure and technology in order to increase women's incomes and promote household food security, especially in rural areas and, where appropriate, encourage the development of producer-owned, market-based cooperatives;…’291
The Beijing Declaration under its first strategic objective also submits that another way to minimise women’s poverty is for national and international, non-governmental organizations and women’s groups to: ‘[m]obilize to protect women's right to full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies.’292
In its second strategic objective to overcome the poverty of women, the Beijing Declaration advocates to, ‘[r]evise law and administrative practices to ensure women’s equal rights and access to economic resources.’293 The Beijing Declaration states that each respective government should: ‘Undertake legislative and administrative reforms to give women full and equal access to economic resources, including the right to inheritance and to ownership
291 Above n 286, p 19. 292 Above n 286, p 20. 293 Above n 286, p 21. 68
of land and other property, credit, natural resources and appropriate technologies; …’294
B. Women and the economy The sixth critical concern of the Beijing Declaration is the ‘[i]nequality in economic structures and policies, in all forms of productive activities and in access to resources.’295 In the clarification of this issue the Beijing Declaration states, that: ‘[a]lthough many women have advanced in economic structures, for the majority of women, particularly those who face additional barriers, continuing obstacles have hindered women's ability to achieve economic autonomy and to ensure sustainable livelihoods for themselves and their dependents ... However, legal and customary barriers to ownership of or access to land, natural resources, ... contribute to impeding the economic progress of women ...’296
There are 6 strategic objectives under this concern and the first strategic objective is to ‘[p]romote women’s economic rights and independence, including access to employment and appropriate working conditions and control over economic resources.’297 The actions listed under this strategy are directed to the respective local government urging them to: ‘Undertake legislation and administrative reforms to give women equal rights with men to economic resources, including access to ownership and control over land and other properties, credit, inheritance, natural resources, and appropriate new technology;…’298
The second strategic objective under the sixth concern is to ‘[f]acilitate women’s equal access to resources, employment, markets and trade.’299 As in the first strategic objective, the actions listed under this strategy are also directed at local governments for
294 Above n 286, p 21. 295 Above n 286, p 15. 296 Above n 286, p 63. 297 Above n 286, p 64. 298 Above n 286, p 65. 299 Above n 286, p 66. 69 implementation. The relevant action that directly relates to women’s rights to land under this strategic objective is to: ‘Enhance, at the national and local levels, rural women's income-generating potential by facilitating their equal access to and control over productive resources, land, credit, capital, property rights, development programmes and cooperative structures.’300
As previously mentioned, the National Gender Policy has incorporated some if not all the strategic objectives and actions listed in the Beijing Declaration as part of Tonga’s national policy in promoting women’s rights. Further discussion about the National Gender Policy will be found under section 3.3.1 of this Chapter.
3.1.3 Commonwealth Plan of Action for Gender Equality 2005-2015. (Commonwealth Plan for Gender Equality) The Commonwealth Plan for Gender Equality was developed by the Commonwealth Ministers Responsible for Women’s/Gender Affairs, with the assistance of the Commonwealth Secretariat, and was negotiated and agreed upon at their 7th meeting held in the Fiji Islands on 30 May-2 June 2004.301 The Commonwealth Plan for Gender Equality therefore is grounded in the framework of international and regional human rights conventions and other instruments.302 It recognises that ‘socio-economic development, democracy and peace are inextricably linked to gender equality.’303 It ‘… reinforces the Commonwealth’s commitment to the Millennium Development Goals (MDGs) and the promotion of a right-based approach to gender equality.’304 (See 3.1.4 section of this Chapter for more detail on the Millennium Development Goals). The Commonwealth Plan for Gender Equality:
300 Above n 286, p 66. 301 Commonwealth Secretariat, Commonwealth Plan of Action for Gender Equality 2005-2015 (Adopted June 2004). Available at http://www.unesco.org/education/information/nfsunesco/pdf/BEIJIN_E.PDF (Accessed 8 October 2012). 302 Commonwealth Secretariat, above n 301, p 9. 303 Commonwealth Secretariat, above n 301, p 6. 304 Commonwealth Secretariat, above n 301, p 7. 70
‘… reflects the Commonwealth’s principles and values and incorporated its responses to the differential impacts of global changes and challenges on women and men, boys and girls. It supports and works towards the attainment of the MDGs and the objectives of gender equality expressed in the 1995 Beijing Declaration and 2000 Beijing+5 Political Declaration and Outcome.’305
Partnership is what the Commonwealth Plan for Gender Equality advocates to be the most effective ways of working towards gender equality and equity.306 Definitions for “gender equality” and “equity” are found in the Commonwealth Plan for Gender Equality as follows: ‘Gender Equality refers to the equal rights, responsibilities and opportunities of women and men, and girls and boys. Equality does not mean that women and men will become the same but that the individuals’ rights, responsibilities and opportunities will not depend on whether they are born male or female. Gender equality implies that the interests, needs and priorities of both men and women are taken into consideration, recognising the diversity of different groups of women and men. Equality between women and men is seen both as a human rights issue and as a precondition for, and indicator of, sustainable people-centered development.’307
Further “equity” is defined in the Commonwealth Plan for Gender Equality to: ‘… [go] further than equality of opportunity to look at outcomes. Treating women and men, or girls and boys, equally does not automatically ensure that they obtain equal outcomes and benefits, since there are many structural factors that may militate against this. Work towards gender equity therefore looks at structural power relations in society as well as material resources, and may include taking
305 Commonwealth Secretariat, above n 301, p 9. 306 Commonwealth Secretariat, above n 301, p 18. 307 Commonwealth Secretariat, above n 301, p 18. 71
positive or affirmative action to ensure that policies and programmes benefit women/girls and men/boys equally.’308
The Commonwealth Plan for Gender Equality views ‘poverty reduction, the protection and promotion of human rights, the strengthening of democracy and gender equality as intrinsically inter-related.’309 It acknowledges that in order to suppress poverty and promote socio-economic development women should have equal access social and economic resources.310 The goals in the MDGs cannot be completely accomplished if women/girls and men/boys do not have freedom from discrimination against treatment and access to resources.’311
The Commonwealth governments have adopted “gender mainstreaming” as the most effective strategy for achieving gender equality. The system of gender mainstreaming allows perpetual equal benefits for women and men in political, economic and societal arena by addressing the women’s and men’s concerns at the levels of designing, implementing, monitoring and evaluating of policies and programmes, and in all areas.312
The Commonwealth Plan for Gender Equality recognises that the member countries need to accelerate the implementation of key international conventions, treaties and their own national gender equality policies, plan and programmes in order to ‘extend the range of partnership, to pursue measurable results-oriented activities, and to develop more stringent monitoring of such implementation based on agreed targets and appropriate gender indicators.’313
The Commonwealth Plan for Gender Equality sets out 4 critical areas that the actions of the Commonwealth members should focus on for the next decade (2005-2015). These
308 Commonwealth Secretariat, above n 301, p 18. 309 Commonwealth Secretariat, above n 301, p 9. 310 Commonwealth Secretariat, above n 301, p 22. 311 Commonwealth Secretariat, above n 301, p 9. 312Commonwealth Secretariat, above n 301, p 18. 313 Commonwealth Secretariat, above n 301, p 21. 72 actions will contribute to building a solid foundation for the achievement of gender quality and equity in this century. Each of these focus areas has activities and actions for the government members and/or the Commonwealth Secretariat to implement. The 4 focus areas are: ‘I Gender, democracy, peace and conflict. II Gender, human rights and law. III Gender and economic development. IV Gender and HIV/AIDS.’314
However the paper only focuses on areas II and III which directly relate to women’s rights to land and these are elaborated upon below:
A. Gender, human rights and law Under this critical focus area, there are various issues raised that are of much concern in the Commonwealth countries in respect of the human rights and law discriminating base on gender. Despite having many issues there are only a few that are directly relate to women’s rights to land and below provides a summary of them: (i) ‘Encouragement of the Commonwealth countries which have not ratified CEDAW to do so.315 (ii) Women and girls experience different forms of discrimination and disadvantage at different stages in the life cycle.316 (iii) In countries where the gender equality legal mechanisms are in place custom practices, traditions and religious beliefs value are often more significant. In such a situation full consideration should be given to the human rights of women and men, girls and boys.317 (iv) Respect for land and property rights is fundamental to the realization of human rights and gender equality. Despite constitutional and legal
314 Commonwealth Secretariat, above n 301, p 25. 315 Commonwealth Secretariat, above n 301, pp 32-33. 316 Commonwealth Secretariat, above n 301, p 33. 317 Commonwealth Secretariat, above n 301, p 33. 73
guarantees in many Commonwealth countries prohibiting discrimination against women with regard to ownership of, access to, or inheritance of land and property, de facto discrimination persists.’318
One of the categories of activities for this critical focus area that is directly related to women’s rights to land is: ‘Culture, violence against women, the law and human rights, including rights regarding access to and ownership of land and property.’319
The governments are encouraged to implement nine different actions in order to accomplish the above activity area, however the following are the only relevant actions which are directly related to women’s rights to land. They are to: ‘(i) Recognise, ratify and implement international and regional human rights instruments that promote gender equality. (ii) Promote legal and, where appropriate, constitutional reform in accordance with the universal standards of human rights including CEDAW in support of gender equality and strengthen the knowledge ad capacity of the justice system, parliament and local authorities on gender equality and rights issues through appropriate ongoing gender training ... (iii) Ensure that women’s rights to land, housing, property and inheritance are promoted and protected, having recourse to relevant international and national instruments on human rights and poverty eradication. (iv) Codify positive customary laws that protect women as a process of reviewing the existing laws to ensure that all laws are in conformity with both international and domestic human rights obligations.’320
The Commonwealth Secretariat pledges to support member countries by:
318 Commonwealth Secretariat, above n 301, p 35. 319 Commonwealth Secretariat, above n 301, pp 35-36. 320Commonwealth Secretariat, above n 301, pp 35-36. 74
(i) ‘Working with governments and in collaboration with CSOs to develop appropriate laws and policies for the promotion and protection of women’s human rights. ... (ii) Documenting and disseminating case studies of good practices that address customary laws and practices that promote the rights of women and girls ... and good practices in land reform processes that take into account gender equality.’321
B. Gender, poverty eradication and economic development ‘It is now universally accepted that poverty is not only based on lack of income but is also intrinsically linked to lack of access to political, economic, social, natural and cultural resources ... Gender inequality causes and aggravate the impact of poverty on women.’322 To achieve poverty reduction, enhancing women’s capabilities is of critical importance. One of the activities this critical area focuses on is: ‘Mainstreaming gender equality into programmes and processed related to poverty eradication, the MDGs, PRSPs, SWAPs, etc., and working to enhance women’s access to and control over productive and natural resources.’323
Governments are encouraged to take actions to effect fourteen suggestions under this focus area. One of these suggestions is directly related to women’s rights to land, that is to: ‘Develop, amend and implement laws to ensure equal rights to productive resources (eg. land, property and credit) for women and men, and enhance women’s access to and control over natural resources (eg. water and forests) in order to create sustainable livelihoods and food security.’324
321 Commonwealth Secretariat, above n 301, pp 36-37. 322 Commonwealth Secretariat, above n 301, p 37. 323 Commonwealth Secretariat, above n 301, p 42. 324 Commonwealth Secretariat, above n 301, p 42 75
For this area of concern the Commonwealth Secretariat pledges to support the member countries to: ‘Develop the methodology and tools for extending gender analysis of budgets to the revenue side, and working in specific countries to institutionalise GRB processes.’ 325
The Commonwealth Plan for Gender Equality sets out relevant policy guidelines for the mainstreaming of gender quality. The Commonwealth Plan for Gender Equality hope to work in partnership together with the government members and civil society organisations, amongst other achievements. Thus the Commonwealth Plan for Gender Equality is hopeful that the strategy and prescribed actions to be effected by both government members and Commonwealth Secretariat will effectively attain equality and equity for women.
3.1.4 United Nations Millennium Development Goals 2005 The United Nations Millennium Development Goals 2005 (MDGs) ‘constituted an unprecedented promise by world leaders to address, as a single package, peace, security, development, human rights and fundamental freedoms.’326 It sets out 8 goals and various objectives that can be easily understood, supported and accepted. These goals ‘form a blueprint agreed by all the world’s countries and the entire world’s leading development institutions ... a set of simple but powerful objectives that every man and woman in the street ... can easily understand and support.’327 These goals complement the critical areas of concern in the action platforms and more specifically in the Pacific, the Pacific Platform for Action 1994 and Revised Pacific Platform for Action on Advancement of Women and Gender Equality 2005-2015. The objectives of these action platforms are reflected in the MDGs.
325 Commonwealth Secretariat, above n 301, p 43. 326 United Nations, Millennium Development Goals Report 2005. Available at http://unstats.un.org/unsd/mi/pdf/mdg%20book.pdf (Accessed 20 October 2012), p 3. 327 United Nations, above n 326, p 3. 76
The MDGs employs four distinct characteristics that distinguish it from the rest of the working guidelines in relation to promotion of gender equality. They are as follows: ‘First the MDGs are people-centered, time bound and measurable. Second they are based on a global partnership, stressing the responsibilities of developing countries for getting their own house in order, and of developed countries for supporting these efforts. Third, they have unprecedented political support, embraced at the highest levels by developed and developing countries, civil society and major development institutions alike. Fourth, they are achievable.’328
The importance of land and property rights in achieving the MDGs by 2015 is fundamentally related to the three pillars of achieving the MDGs.329 In today’s world women are major players in the agriculture sector, in household food and nutrition security however women own ‘less than 2% of the available land worldwide.’330 Securing land rights for women contributes not only to economic empowerment for materialistically unfortunate families but also promotes women’s social and political power. Land tenure security, for both women and men, is just one step on the road to reducing rural poverty. Although the MDGs do not specifically talk about women’s rights to land, they still stress that securing access to land when linked with access to other productive factors surely makes land rights the most realistic way for women to contribute to national development.
The MDGs are designed on the basis that poverty is directly linked to exclusion from basic human rights. Improved access and respect for land rights of both genders is a starting point in establishing respect for human rights, including the rights of women, who make
328 United Nations, above n 326, p 3. 329 Annan K (UN Secretary-General), In Larger Freedom: Towards Freedom Developments, Security and Human Rights for All (A/29/2005) (21 March 2005). Available at http://archives- trim.un.org/webdrawer/rec/455131/view/Item-in-KAA%20ODSG%20- %20Stategic%20Planning%20Unit%20%28SPU%29%20%20-%202005.PDF (Accessed 14 October 2012). 330 actionaid, Her mile – Women’s rights and access to land (March 2010). Available at http://www.actionaid.it/filemanager/cms_actionaid/images/DOWNLOAD/Rapporti_DONNE_pdf/HerMil e_AAItaly.pdf (Accessed 13 October 2012). 77 up half the population of Tonga. Strengthening the rights of women to land, property and natural resources is indispensable to achieving the MDGs.
3.2 RELEVANT REGIONAL POLICIES Tonga has shown its commitments to the Pacific Platform for Action adopted in Noumea in 1994 and the revised edition of Pacific Platform, which is known as Revised Pacific Platform for Action on Advancement of Women and Gender Equality 2005 to 2015 (Revised Pacific Platform). As a part of this commitment Tonga had its first National Policy on Gender and Development in 2001. (See section 3.3.1 of this Chapter for detail of this National Policy). The following describes the importance of these two regional platforms to women’s rights to land in Tonga.
3.2.1 Pacific Platform for Action 1994 AND Revised Pacific Platform for Action on Advancement of Women and Gender Equality 2005-2015. The Pacific Platform for Action came into being as a direct result of the Pacific region’s preparation for the Beijing Women’s International Conference in 1995. It was adopted in 1994 by all Pacific Forum members as part of the Noumea Declaration.331 It formally recognises the importance of women’s participation in national and regional development activities. As one Pacific commentator has said: ‘The Pacific Platform represents a major milestone for Pacific women. Until the Pacific Platform was published, Pacific women did not have a regional policy document, and there were very few national policy statements or reports about the situation of women.’332 The Pacific Platform consists of thirteen critical areas of women’s rights concern that were critically important to the Pacific region. ‘It is the baseline document produced by representatives from all Pacific nations—now serves as a guideline for national and regional planning.’333 It was the Pacific’s contribution to the Beijing Declaration. Together with the Beijing Declaration,
331 Pacific Island Forum Secretariat, Gender Policy (December 1998 revised May 2003). Available at http://www.forumsec.org.fj/resources/uploads/attachments/documents/PIFS_Gender_Policy_May_200 3.pdf (Accessed 13 October 2012), p1. 332 Fairbairn-Dunlop P, ‘Chapter 4- Gender, culture and sustainable development – the Pacific way’ in Culture and Sustainable Development in the Pacific. Available at http://epress.anu.edu.au/culture_sustainable/ch04.pdf (Accessed 26 September 2012), p62-75. 333 Fairbairn-Dunlop P, above n 332, p 63. 78 the Pacific Platform has been used by the Pacific Islands and territories to ‘guide actions for national, regional and international co-operations for empowerment of women in the areas of political, legal, social and cultural rights.’334
The Revised Pacific Platform is a regional charter. It noted that the 13 critical areas of concern in the Pacific Platform ‘are not prioritised, nor do they have quantified goals.’335 The Revised Pacific Platform also includes “gender indicators” to be used as the basis of evaluating and monitoring progress under the platform. It re-clustered the 13 critical areas of concern under four broad headings or strategic themes within which poverty eradication is the focus. These four strategies themes are: ‘Mechanisms to promote advancement of women; Women’s legal and human rights; Women’s access to services; Economic empowerment of Women.’336
The four themes still retain the vision embodied in the Pacific Platform but define more realistic and achievable goals. The Revised Pacific Platform develops various goals, objectives and strategies for each of the four themes.
The second theme ‘Women’s Legal and Human Rights’ is directly related to women’s rights to property including land. Below is an excerpt from the Revised Pacific Platform where it states the second theme, its goal and objective and strategy to achieve the goal and objective.
334 The Revised Pacific Platform For Action On Advancement Of Women And Gender Equality 2005 to 2015. Available at http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B54321397- C978-46A8-A2A7-972FF13860D5%7D_Pacific-Outcomes.pdf (Accessed 26 September 2012) p 8. 335 Above n 334, p 9. 336 Above n 334, p 16. 79
Excerpt from Table in page 39 of the Revised Pacific Platform.
THEME GOAL OBJECTIVE STRATEGY
2. WOMEN’S 2.1 Elimination of all All governments to Ratification of LEGAL AND forms of ratify CEDAW CEDAW HUMAN discrimination against RIGHTS women Governments review i. Targeted Gender national legislation to Sensitisation ensure that women’s Programs human rights are fully ii. Review protected by law Legislation iii. Review Family Law and establish a Family Court iv. Monitor the Status of Women v. Study Issues of Conflict between Custom and Law on Gender Issues Governments review vi. Targeted Gender national legislation to Sensitisation ensure that women’s Programs human rights are fully vii. Review protected by law Legislation viii. Review Family Law and establish a Family Court ix. Monitor the Status of Women x. Study Issues of Conflict between Custom and Law on Gender Issues
The second theme in the Revised Pacific Platform emphasizes the importance of reviewing the relevant national legislation. The Revised Pacific Platform further describes the purpose of reviewing the national legislation is ‘[t]o ensure that the laws provide for
80 equal opportunities for women and men and to eliminate discrimination against women.’337
Although the Revised Pacific Platform is an action plan and can be described as ‘soft-law’ and has no binding effect on an adopting country, such as Tonga, it can be argued that Tonga made a commitment to this charter and therefore should take actions to fulfill those commitments.
3.3 INTERNAL POLICIES Tonga developed and adopted its national policy for women’s equality in 2001 known as National Policy on Gender and Development (National Gender Policy). This document was revised in August 2012 after a four day workshop and consultations with various stakeholders. When this Chapter was being drafted, the revised edition of the National Policy was still in the process of finalisation and was said to be “confidential.”338 In November 2002 the Women Development Centre developed the Three Year Implementation Plan for Gender and Development 2003/04-2005/06’ (Implementation Plan). Descriptions of these two national policies are as follows.
3.3.1 Tonga National Policy on Gender and Development 2001 Under Cabinet Decision No.186, dated 17 February 1993, His Majesty’s Cabinet approved ‘[a] national policy on Women in Development (WID) is to be developed.’339 The same Cabinet Decision approved ‘[a] National Committee on Women’s Affairs is to be set up to review and coordinate issues of special concern to women.’340 This was an apparent indication of the Government’s recognition that equal participation of both women and men is ‘the cornerstone for successful and sustainable development in Tonga.’341 The
337 Above n 334, p 49. 338 Email from Mrs. Lepolo Taunisila
National Gender Policy is the baseline document for the Kingdom’s vision ‘to achieve a gender equity society within the first 25 years of the 21st Century.’342
The National Gender Policy is a summary of the policy statement on Gender and Development for the Kingdom with the vision ‘[t]hat all men, women, children and the family as a whole achieve equal access to economic, social, political and religious opportunities and benefits.’343 Its strategy is founded on ‘[p]romoting universal and free participation and partnership of men and women in all spheres of life – religion, society, politics, economics, and culture.’344
The National Gender Policy sets out ten areas for policy emphasis and guidelines. It also provides the relevant action programs with various specified agencies as the leading responsible bodies for implementation. The ten areas for policy emphasis in the National Gender Policy are as follows: ‘(i) Gender and the Family (i) Gender and Religion (ii) Gender, Culture and Society (iii) Gender and Health (iv) Gender and Education (v) Gender and Politics (vi) Gender and the Economy (vii) Gender and Regional, Outer Islands and Rural Development (viii) Gender and The Public Sector (ix) Gender and the Private Sector.’345
For each of the above ten areas there are various “emphases” and “Policy Guidelines”. The only policy area which is directly related to women’s rights to land is the Agriculture
342 Tonga Women Development Center, Three Year Implementation Plan and Gender Development 2003/04-2005/06 (November 2002), p 3. 343 Kingdom of Tonga, above n 285, p 2. 344 Kingdom of Tonga, above n 285, p 2. 345 ‘Table of Contents’ in above n 285. 82 and Fisheries in Sectoral Level under “Gender and the economy”. One of the emphases is for ‘[e]qual access to land for both men and women’346 and its respective Policy Guideline is to ‘[e]ducate and provide options for an appropriate model for women’s accession to equal land rights as men.’347 In the Action Plan, the Women Development Centre established by Government under Cabinet Decision No.186/1993 is responsible for the implementation of this policy and also to conduct ‘[a]ppropriate local consultancy to study carefully and appropriate equal land rights model for men and women for Tonga before the submission for final consideration by Government.’348
The Emphases and Policy Guidelines described above are the only references to women’s rights to land in Tonga’s National Gender Policy.
When the National Gender Policy was being revised in August 2012 consultations were specifically focused on three main “Goals” in the Tonga’s Millennium Development Goals. First was the “Basic Need Poverty”, second was the “Gender Equality and Women’s Empowerment” and third was the “Non Communicable Diseases”.349 The review was a public consultation through a workshop with stakeholders from government, civil society, communities and non-government organizations, which was followed by some 33 further sectoral and community consultations.
The discussions during the review were focused on five main priorities. They were: (i) enabling families and social environments for gender equality; (ii) equitable access to economic assets and employment; (iii) increased women’s leadership and equitable political representation; (iv) create equal conditions to respond to natural disasters and environment and climate change; and
346 Kingdom of Tonga, above n 285, p 7. 347 Kingdom of Tonga, above n 285, p 7. 348‘Annex 1: Matrix and Action Agenda with Leading Agencies’ in Kingdom of Tonga, National Policy on Gender and Development (August 2001) p 10. 349 Tonga Ministry of Information and Communication, ‘Gender equality and development is central to achieving MDG’ (2012), retrieved from http://www.mic.gov.to/gender-policy/women/4032-gender- equality-and-development-is-central-to-achieving-mdg (Accessed 5 June 2013). 83
(v) enabling environment for mainstreaming gender across Government Policies, Programmes and Services.350
In all these five priorities of discussion, only one goal under priority (iii) was to empower women to have greater access to land.351 The particulars of this priority cannot be included in this paper because when this Chapter was finalised the draft Review National Gender Policy was still yet to be finalised and to obtain the Cabinet’s approval. The Review National Gender Policy is not available to the public until it gains the Cabinet’s approval.
3.3.2 Three Year Implementation Plan for Gender and Development 2003/04- 2005/06 The Three Year Implementation Plan for Gender and Development (Implementation Plan) moves on further from the action programs set out in the National Gender Policy. The Implementation Plan designs an Implementation Framework based on the tripartite partnership between the Tongan Government, Tongan community and the aid donors to work closely together to achieve the National Vision in its National Gender Policy mentioned above, for gender equity in Tonga. The action plan in the Implementation Plan are prioritised to three priorities as P1, P2 and P3.352 Due to limited resources, the government must therefore prioritise its work according to resources available.353
The Implementation Plan designated the review of the legislation on women’s rights in property ownership including land, as P2. This strongly indicates that the issue of women’s rights to land in Tonga is not the government’s top priority. There has been some progress in relation to other spheres in relation to women such as violence against women, and Tonga’s new Domestic Violence Against Women Bill 2012 is evidence of this progress. However with regards to women’s rights to land, there is no progress in
350 Tonga Ministry of Information and Communication, above n 349. 351 Tonga Ministry of Information and Communication, above n 349. 352 P1 – Priority 1, P2- Priority 2, P3- Priority 3 353 Tonga National MDG Taskforce, Millennium Development Goals in the Kingdom of Tonga – Today and Tomorrow, Report 1 (March 2005) p 3. 84 implementing the goals and objectives under either National Gender Policy or Implementation Plan.
3.3.3 Millennium Development Goal Report 2005 – Tonga In 2003 Tonga’s MDGs Taskforce was established with the mandate ‘[t]o oversee the Government of Tonga intermediate and long-term national strategy for achieving and coordinating the reporting obligation of the MDGs.’354 In fact the MDGs Taskforce was required to ‘report regularly to the Development Coordinating Committee and His Majesty’s Cabinet on the progress of compiling Tonga’s first status report to the Secretary General of the United Nations that was due at the end of 2004, and the long-term achievement of the MDGs by 2015.’355
In general, the purpose of Tonga’s MDGs Report was ‘to research and report on the status of any progress by Tonga on the eight goals that were set out in the United Nations’ MDGs.’356 The only relevant part with regards to land in this Report is the confirmation that there is a limited land resource which is ‘worsening by high population growth in the urban area.’357 In fact this reference only refers to the limited land resources in the urban area on the main island of Tongatapu.
This Report acknowledges and confirms the commitment Tonga makes to achieve the Millennium Development Goals prescribed by the United Nations’ in its MDGs and will continue to commit to these goals until the final report in 2015.
3.4 FAILURE TO ADOPT CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the most important binding international instrument in promotion gender
354 Tonga National MDG Taskforce, above n 353, p 2. 355 Tonga National MDG Taskforce, above n 353, p 2. 356 Tonga National MDG Taskforce, above n 353, p 2. 357 Tonga National MDG Taskforce, above n 353, p 8. 85 equality and equity. Parties to the CEDAW are legally bound and must take appropriate measures to carry out the provisions set out in the agenda. These measures include changing the existing domestic laws that are deemed discriminatory against women or to dispose of them altogether.
By September 2012, 187 countries had either ratified or acceded to this convention, while 99 are still signatories.358 Tonga is the only Pacific Island nation which has neither signed nor ratified or acceded to CEDAW.359 Despite not being a state member of CEDAW, Tonga has been, and still is making progress in acknowledging its importance. This, together with CEDAW’s pivotal role in promoting gender equality is the reason why this section is included in this paper.
In its National Gender Policy, Tonga laid out action programs relating to CEDAW. These programs include: ‘Assessing the provisions of CEDAW as to allow the consideration of Tonga’s response to the recommendations in the Convention. Develop a Plan of Action on CEDAW Articles for community awareness, sectoral consultations, capacity building of GO & NGO Focal Points on CEDAW Articles & formal review of Tonga laws and Articles of CEDAW.’360
In its Implementation Plan Tonga set to develop policy and programs for the CEDAW awareness as one of its top priorities. The assessment of the CEDAW’s Articles and Tonga’s accession to the CEDAW was also in the top priority.361 However, since the
358 United Nations Treaty Collections ‘Status of CEDAW’. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (Accessed 2 October 2012). 359 United Nations Treaty Series ‘Status of Treaty - Convention on the Elimination of All Forms of Discrimination Against Women’. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (Accessed 12 October 2012). Palau who is the other Pacific Island nation who has not ratified CEDAW signed to CEDAW in September 2011. 360 Kingdom of Tonga, above n 285, p 16. 361 Tonga Women Development Centre, above n 342, p 12. 86
Implementation Plan was promulgated, there has not been much progress with regards to comprehensive implementation of the action programs in the Plan. Implementation of some of the action programs in the Implementation Plan were mostly done on ad hoc basis.362
It was not until May 2008 that CEDAW again became an issue in Tonga when Tonga presented its first Universal Periodic Report (UPR) to the United Nations Human Rights Council. Amongst other concerns about human rights, the Report acknowledged discrimination against women in Tonga particularly with the inheritance of land when it stated that – ‘Inheritance laws, especially those concerned with land, discriminate against women. Women can lease land, but inheritance rights pass through the male heirs. Under the inheritance laws, the claim to a father's estate by a male child born out of wedlock takes precedence over the claim of the deceased's widow or daughter. If there are no male relatives, a widow is entitled to remain on her husband's land as long as she does not remarry or engage in sexual intercourse.’363
The Report also acknowledges the fact that ‘… members of the hereditary nobility had substantial advantages, including control over most land and a generally privileged status.’364 The UPR failed to make reference to the CEDAW at the time because it was and still has not been acceded to by Tonga. However, the number of recommendations made by a significant number of the United Nations’ states was for Tonga to accede to the CEDAW. In total, there were 42 recommendations relating to human rights made by various state members of the United Nations for Tonga to act on. Tonga accepted only 31 of these recommendations. Eight state members recommended for Tonga to ratify the
362 Interview with Mrs. Polotu Paunga, Director, Women Development Center (Nuku’alofa, 30 October 2012). 363 Kingdom of Tonga, ‘UPR – 2008 Country Report’, p 10. 364 Kingdom of Tonga, above n 363, p 9. 87
CEDAW.365 Israel in particular recommended that Tonga should ‘consider signing and ratifying CEDAW and consider especially article 15 and 16 thereof which relate to the equal right of women to administer property and the equal rights of both spouses in respect of the ownership, acquisition, management, enjoyment and disposition of property.’366 Additionally, Japan recommended for Tonga to ‘continue to proceed with the work of reviewing and making necessary adjustment to relevant domestic laws and regulations for the prompt ratification of CEDAW.’367
It should also be mentioned that two of the recommendations which Tonga did not accept directly related to the inheritance law of Tonga. The first recommendation was for Tonga to ‘consider repealing the discriminatory practice in the inheritance laws.’368 The second was for Tonga to ‘amend legislation discriminating against women in the fields of inheritance, ownership to land and child support.’369
On 29 August 2008, a motion was moved in the Legislative Assembly of Tonga for the Government to ratify the CEDAW.370 The motion was moved by two of the people’s representatives, Mr. Pohiva and Mr. Pulu. There were three main reasons for this motion and they were: (1) ‘By ratifying CEDAW, it is the way to demonstrate the government’s support and commitment to protect the women’s rights for the benefit of the country as a whole. (2) There is a lot of support to ratify the CEDAW from Civil Society Organisations and other Women Organisations.
365 UPR-INFOR, ‘Responses to Recommendation – Tonga’ (Adopted in the Plenary in June 2008). Available at http://www.upr-info.org/IMG/pdf/Recommendations_Tonga_2008.pdf (Accessed 8 October 2012) where the 5th , 6th and 7th recommendations accepted by Tonga was made from Brazil, Czech Republic, New Zealand, Turkey, United Kingdom, Switzerland, Israel and Japan. 366 UPR-INFOR, above n 365 – the 6th recommendation accepted by Tonga. 367 UPR-INFOR, above n 365 the 7th recommendation accepted by Tonga. 368 UPR-INFOR, above n 365 – Paragraph 38 (c)- a recommendation from Switzerland. 369 UPR-INFOR, above n 365 – Paragraph 39 (a)- a recommendation from Czech Republic. 370 Motion No. 6/2008 (29 August 2008) as part of Hansard Record No.30/2008 dated 13 October 2008, p 6 & 8. 88
(3) There will be benefit for the general public of Tonga because this Convention demonstrates some ways of how the law and work objectives which discriminate women can be changed.’371
On 28 October 2008, by vote of 6 members of the people’s representatives with no dissent, the Legislative Assembly accepted the motion no.6/2008 for the government to ratify CEDAW.372 The matter proceeded to the Cabinet for finalisation. On 28 August 2009 the Cabinet’s decision with reference to the Convention was ‘not approved for the Government to ratify with reservations the CEDAW.’373 On 11 September 2009 a letter was sent from the Cabinet’s Secretary General to the Chief Clerk of the Legislative Assembly informing him of the Cabinet’s Decision on 28 August 2009 not to accede to the CEDAW. This letter sets out the reasons why the Cabinet did not approve to ratify the CEDAW. The reasons are as follows: (i) ‘If the government is to ratify [the CEDAW] it will affect the succession laws to land, succession to the throne and land ownership because these laws must change to be in line with what [the CEDAW] requires. (ii) Abortion will be allowed in Tonga. The rules of marriage life will also change and will create inconsistency with our culture and the religious beliefs in this country. (iii) [The CEDAW] can neither be ratified with reservation nor be temporarily ratified because ratification also means a promise to change the law in the near future as explained in i) and ii). There are still lots of countries who have not signed [the CEDAW] including the USA.’374
The letter was discussed and further clarified in the Legislative Assembly on 17 September 2009. After reading the letter in the Legislative Assembly, the Prime Minister, clarified the reasons for the Cabinet’s disapproval. He stated ‘... I would like to state herein
371 Above n 370. 372 Legislative Assembly of Tonga, Hansard Record No. 37/2008 (28 October 2008) p 6. 373 CD No.716 P-11a (IB 7/3 V5) (28 August 2009). 374 Letter from Mr. Kautoke (Cabinet’s Secretary General) to Dr. Viliami Latu (Chief Clerk, Legislative Assembly) (Ref.ORG 3/7) (11 September 2009) as part of the Handsard Record No. 31/2009 (17 September 2009) p 7-8. 89 that the government supports everything that is in line with our tradition and in accordance with our customs and family life the government fully supports women’s rights.’375 He continued on to say that ‘Article 2 of the CEDAW directs that the state parties must pursue by all appropriate means and without delay a policy to repeal laws or Constitution that are discriminatory to women.’376 The Prime Minister strongly argued that Articles 2 (a) and 2(f) not only require a change to the laws and Constitution but also such change is to be effected only by repealing the current laws.377 He continued to argue that accession to the CEDAW would mean for Tongans to ‘… discard of our customs and our practices or how we live in this country and that all of these will be discarded.’378 The Prime Minister strongly emphasised the obligation on the state members to change current laws that are of a discriminatory nature against women, immediately if they ratify or accede to the CEDAW. In this regard he firmly stated: ‘The first thing that will need, is the way to change the laws related to land ... when we talk about laws and the land inheritance which has been there for over a century, and no one ever attempted to change this before ... This is what will happen if we are to accede to this Convention; that we must change the laws related to land so that succession of female will be the same as it is for male ... We have belief in our customs and the Bible, that the head of the family is the man. This will be also repealed ... If a couple divorces, their property will be equally divided between them. This is a significant overthrow for this country. Under Article 16 if a female wants to marry another female, according to this Convention, we must allow it.’379
As a result, the Legislative Assembly voted 18 to 1, with four absents, not to ratify the CEDAW.380 This vote was contrary to the vote by the Legislative Assembly on 28 October 2008, as previously mentioned. The government’s decision not to ratify the CEDAW
375 Legislative Assembly of Tonga, above n 274, p 22. 376 Legislative Assembly of Tonga, above n 274, p 22-23. 377 Legislative Assembly of Tonga, above n 274, p 23. 378 Legislative Assembly of Tonga, above n 274, p 23. 379 Legislative Assembly of Tonga, above n 274, p 23. 380 Legislative Assembly of Tonga, above n 274, pp 32-33. 90 caused outrage amongst Tongan women’s rights groups with members of one group, the Tongan Women’s National Congress, fasting in protest.381
On 17 October 2009, the Prime Minister’s office issued a press statement confirming the government’s refusal to accede to the CEDAW.382 The non-ratification of the CEDAW caused many of Tonga’s women support groups to be vocal. Media coverage of the protests by women’s groups, as well as of the issues raised by them was considerable. In effect, Tonga’s non-accession of the CEDAW became an awareness program for discrimination against women. The government’s decision cast a spotlight on how women are treated in general but most importantly the discriminatory nature of the land laws.
While the discussions and deliberations about the CEDAW took place in the government, the Regional Rights Resource Team conducted a sub-regional workshop for CEDAW ratification for non-ratification countries from the 5-7 November 2008. This workshop was held in Tonga where delegates from Nauru, Tonga and Palau attended. In his opening speech, Tonga’s Minister of Education, Rev. Dr. Tevita Palefau stated that ‘[o]ver the years, the Tonga Government had collaborated with NGOs, CSOs and Development Partners, to raise awareness of the CEDAW. Government under the Women's Affairs, has collaborated, partnered, trained, raised awareness, research and surveyed, the CEDAW in Tonga.’383 The Minister also confirmed that various governmental departments had made legislative comparison exercise of the laws of Tonga against the CEDAW and this exercise shows that Tonga commits to women’s development on the global level. The Minister reiterated that ‘Tonga's commitment to women's empowerment, speaks through her actions and international as stated above, and in her national commitments as in her
381 Interview with Mele ‘Amanaki, President, Tongan Women’s National Congress (Port Vila, 7 February 2010). 382 Matangi Tonga Online, (18 September 2009), http://www.matangitonga.to/article/20090918_1047_cedaw.html/ (Accessed 21 September 2012). 383 Ministry of Information and Communication, ‘Opening Address for the Sub-regional Workshop on CEDAW Ratification for Non-Ratified Countries’ (2008), retrieved from http://www.mic.gov.to/gender- policy/women/402-opening-address-for-the-sub-regional-workshop-on-cedaw-ratification-for-non- ratified-countries-5-7-november-2008-jidh-nukualofa (Accessed 5 June 2013). 91 policies and strategies, as well as in her participation and collaborations with all stakeholders ….’384
Further the non-ratification of CEDAW was part of the Universal Periodic Report from Tonga in the second cycle that was submitted by Lord Vaea, Tonga’s Minister of Internal Affairs, to the United Nations’ Human Rights Council in January 2013. There were 56 recommendations in total and four of these recommendations related to Tonga’s prioritising the ratification of CEDAW with reservations.385 These four recommendations were not accepted by Tonga because it was against Government policy and priorities.386 There were also four recommendations that were accepted by Tonga in relation to the development of legislation to enhance a more gender balanced land ownership law and to include women in the land inheritance law.387 The Minister confirmed that the Government of Tonga is committed to ratifying CEDAW but after public consultation on reservations to CEDAW.388 The Minister confirmed that ‘Tonga does not want to speed up the ratification of CEDAW until all stakeholders give their views to the Government.’389 He explained that ‘the privileges that women enjoyed as part of Tongan social life and any change would have to be managed carefully so as not to change the Tongan culture drastically and to avoid disharmony.’390 Lord Vaea during discussion of Tonga’s second report to the United Nations’ Human Rights Council in March 2013 stated that in December 2011, Tonga had decided to ratify the Convention with reservations, following a nationwide consultation to reach a consensus on the reservations and the way forward for ratification.’391 Lord Vaea continued to state that reservations to the CEDAW ‘would likely cover succession rights, abortion, land ownership and same sex marriage.’392
384 Ministry of Information and Communication, above n 383. 385 New Zealand Kaniva Pacific ‘Tonga’s second universal periodic review on human rights’ (January 2013), retrieved from http://www.nzkanivapacific.co.nz/2013/01/25/tongas-second-universal-periodic- review-on-human-rights/ (Accessed 26 May 2013) 386 New Zealand Kaniva Pacific, above n 385. 387 UN Human Rights Council, above n 29. 388 New Zealand Kaniva Pacific, above n 385. 389 New Zealand Kaniva Pacific above n 385. 390 UN Human Rights Council, above n 29. 391 UN Human Rights Council, above n 29, p 6. 392 UN Human Rights Council, above n 29, p 6. 92
He highlighted that succession rights, abortion, land ownership and same sex marriage ‘were all sensitive issues in Tonga which needed to be fully canvassed by all stakeholders before the Convention can be ratified.’393 Further Lord Vaea stated that ‘the right of women to land was still an issue under consideration, given Tongan culture and the current land tenure system. However ... Royal Commission of Inquiry had made recommendations to amend the land laws to allow women more access to land.’394
When this Chapter was being drafted the Attorney General’s office was preparing a submission to the Cabinet for Tonga to accede to the CEDAW, but with reservations. This was prompted by the Women’s Affairs Department.395
3.5 CONCLUSION Tonga has announced its commitments to various international and regional policies and platform actions. As part of its commitments to these policies Tonga developed its own National Policy and Implementation Plan with regards to gender equality. Gradually the establishment of governmental bodies with mandates to oversee women’s rights in general has become well known in Tongan society. The work and advocacy of the Civil Society Organisations and Non-Government Organisations about women’s rights in general are also noteworthy. As of today there is more significant awareness of gender equality and equity within the Tongan community. However, the major challenge is the implementation of what has already been provided in the national policy. So far the implementation of some of the 10 areas of policy has been at a snail’s pace, whereas in some policy areas there has been no implementation at all. In policy areas related to equal access to land for men and women there has not been any progress at all at the national level.
On the international plane, the same can also be said. Tonga’s awareness of CEDAW is increasing. Many workshops and public awareness programs which have been publicised
393 UN Human Rights Council, above n 29, p 6. 394 UN Human Rights Council, above n 29, p 6. 395 Polotu Paunga, above n 362. 93 through the media have been made. However the challenges facing ratification of this convention can be summed up with the concern from the Minister of Internal Affairs when he confirmed that there are ‘difficult human rights issues that Tonga still needed to carefully consider against certain factors such as traditional values, fundamental Christian beliefs, Government policy and limited resources available to implement such human rights.’396Although customs and cultures of Tonga, as mentioned earlier, are not part of the Tongan statutes, they are still very much part of the Tongan practices and cultures. The commitments Tonga has towards international, regional and national policies seen in this Chapter could be an indication that Tonga is now moving towards a more human rights approach in formulating, designing and implementing of its policies, including policies related to women’s right. The awareness of civil society members should also be raised through media, workshops and trainings. Advocating and strengthening Tonga’s commitment to promote human rights should be effected, starting with the grass-root level because most members of this level may not be aware of the fundamental principles of human rights. In order for Tonga to improve its land related policy and legislation to substantiate a more gender friendly framework with regards to women’s right to land, raising public’s awareness and increasing the momentum of advocacy on women’s right to land will increase awareness on the subject. Chapter 7 will provide more insights on the popular view on women’s right to land in Tonga.
396 New Zealand Kaniva Pacific, above n 385.
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CHAPTER 4: THE 1983 LAND COMMISSION
INTRODUCTION This chapter concentrates on the work of the first Land Commission ever established in Tonga with a mandate to inquire into land issues and review the land laws. This Land Commission was officially approved in January 1983 (referred to in this Chapter as the “1983 Land Commission”) and operated from 22 April 1983 to 31 January 1985, when its report was concluded and submitted to His Late Majesty King Taufa’ahau Tupou IV in Privy Council.
The first section of this chapter describes the two main land issues that lay behind the establishment of the 1983 Land Commission. The second section states the 1983 Land Commission’s terms of reference for its work. The third section describes the six members of the 1983 Land Commission while the fourth section is an explanation of the timeline its work. The fifth section explains the rationale behind involving the public in the 1983 Land Commission’s inquiry. The sixth section provides a brief overview of each section of the 1983 Land Commission’s report. The seventh section describes and analyses the recommendations of the 1983 Land Commission directly referring to women’s rights. The eighth section describes and analyses the 1983 Land Commission’s limited freehold proposal, which had an indirect effect upon the rights of women in Tonga. The ninth section describes two issues with regard to women’s rights to land which were omitted from the 1983 Land Commission’s report. The last section of this chapter is its conclusion.
4.1 BACKGROUND TO THE ESTABLISHMENT OF THE 1983 LAND COMMISSION The establishment of the 1983 Land Commission was considered by the government as one way by which it could respond to the mounting public pressure to review the Land Act. In fact there were three main land issues that were of serious public concern before the establishment of the 1983 Land Commission. First, was the insufficient land for distribution and allocation as allotments for commoners; second, which was related to the first, was the failure of the estate holders to sub-divide their respective estates and make 95 them available for allotments; third was the ‘need to evaluate the effectiveness of the existing land tenure system in promoting economic development.’397
The first issue, His late Majesty King Tupou IV had addressed in his opening speech of the Legislative Assembly in 1975, by stating that it may be time to reduce the statutory area for tax allotments due to insufficient available land in Tonga, so that more Tongans may obtain access to tax allotments. The late King stated that he was mindful of the fact that there were indeed problems relating to the land system and its proper utilisation. He was concerned that the changes in the circumstances were such as to necessitate changes to the present land holding so as to allow access to those who wanted to work the land.
Later in the same year, the Tonga Council of Churches hosted a seminar on “Land and Migration”. His late Majesty King Tupou IV in his opening of this Seminar again addressed two of the “grave problems” in relation to land, and the importance of developing measures for the proper utilisation and management of land to ensure the best possible returns.398
The second issue about the failure of estate holders to make their land available for allocation of commoners’ allotments was also discussed at the Land and Migration Seminar hosted by the Tonga Council of Churches in 1975. It was clear that the unwillingness of estate holders to make their land available for allocation was creating growing discontent and developing a noticeable degree of distrust and animosity towards the estate holders from the landless part of the population. In one of the papers presented in the Seminar, the author, who had interviewed members of the public, reported that there were many causes for the discontent of the public about the estate holders.399 These included the practice of estate holders to expect to receive money in exchange for an allotment, without which inducement an estate holder ‘is so reluctant to approve
397 Mosikaka Moengangongo, above n 4, p 100. 398 His Majesty King Taufa’ahau Tupou IV, ‘Opening Address on the Seminar on Land Tenure and Migration’ in Tonga Council of Churches, Land and Migration, Appendix “A”. 399 S. Laitia Fifita, ‘Problems of the land – People’s View’ (Paper presented at the Land and Migration in the Council of Churches Conference, Nuku’alofa, 22-26 September 1975), p 31 at 39. 96 registration of land.’400 The reluctance to approve registration of land was, on many occasions said to be due to the fact that the money received by an estate holder from an applicant for an allotment was considered by the estate holder to be too small a sum.401 In his seminar paper, Fifita was very concerned about this practice of estate holders receiving money in exchange for an allotment. Fifita considered that estate holders were abusing their power in desiring more money in return for allotments, which had the effect that ‘a rich man gets land much more readily and easily than the poorer person.’402
These concerns were the basis for two main resolutions and twelve suggestions for reform adopted by the Land and Migration Seminar during the first part of the proceedings which were concerned with Land Tenure in Tonga. The first resolution was for the Tonga Council of Churches to ‘convey to His Majesty the King the respectful recommendation that a Royal Commission be appointed ... as soon as possible to examine the present land tenure system and to advise the Government as to a desirable future land policy for Tonga.’403 The second resolution was a request to the Tonga Council of Churches ‘to establish a Land Committee as an operation of the Tonga Council of Churches’404 to work together with the Royal Commission under the first resolution above. The Seminar declared its conviction that ‘a review of land tenure policy and practice in Tonga is an urgent necessity.’405 It was ‘concerned that the current land tenure system should provide more opportunities for the landless, more security for persons living on the land, and more incentive to use land effectively.’406 It was apparent from the outcomes of the Tonga Council of Churches Seminar that there was a need to improve Tonga’s land tenure system.
The 12 reforms suggested in the Land and Migration Seminar were as follows:
400 S. Laitia Fifita, above n 398, p 31 at 39. 401 S. Laitia Fifita, above n 398, p 31 at 39. 402 S. Laitia Fifita, above n 398, p 31 at 39. 403 ‘Resolutions of the Seminar as a Result of Papers and Discussion of Land Tenure in Tonga’ in Tonga Council of Churches, Land and Migration (1975), p ii. 404 Above n 403, p ii. 405 Above n 403, p iii. 406 Above n 403, p ii. 97
‘(a) Introduction of land tax payable to Government revenue at a figure fixed every year depending on the state of the economy and reducible (in cases of hardship) which will encourage all tofi’a and ‘api holders to make maximum use of the their land, will discourage absentee holders and will persuade tofi’a holders to distribute unused land; (b) Improvement and enforcement of legislations relating to the non-use of land, such legislation to be extended to both hereditary and allotted land; (c) appointment of a Land Board or Commission with the Minister of Land as chairman to administer the distribution of land; (d) raising of age of persons entitled to allotment from 16 to 18 or 21 years; (e) regulation to be passed (in accordance with section 34 Land Act) to determine how many acres out of every tofi’a the holder may reserve for himself and his successors; (f) amendment to provide that, on ejectment of an ‘api holder or vacancy due to the lack of an heir, the ‘api should immediately pass to the Government for redistribution; (g) improvement and enforcement of the present law requiring the Minister of Lands to receive every application for an ‘api direct from the applicant without necessity of a prior signature of the tofi’a holder who may subsequently be consulted by the Minister; (h) greater flexibility in sizes of allotments and leases; (i) provision for the leasing of allotments to Tongans to ensure that land will be used despite the temporary absence of the holder; (j) introduction of town planning and zoning for Nuku’alofa and large towns with consideration of the reversion of all urban land to the Government for leasing to the people; (k) amendment to the Constitution (clause 67 and 79) to allow the full Legislative Assembly to discuss and vote on all land matters (whether amendments are needed
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to the Constitutions or to statutes) – that is to say, all matters except succession to the Throne.’407
On 18 January 1983 a resolution was passed by the cabinet of His Majesty, the late King Tupou IV, under Decision No.60 LSR 1/1, dated 18 January 1983, which decided that a Land Commission be established for the purpose of reviewing the Land Act of the Kingdom of Tonga.408 The official establishment of this Land Commission was not effected until 22 April 1983.409
The establishment of the Commission was the first time that the government considered it appropriate to respond to the mounting pressure from the public to review the land issues relating to land that were coming to the fore, including the issues that were raised in the Seminar of the Council of Churches in 1975.410 According to a prominent participant in the Council of Churches Seminar, the issues from the Council of Churches Seminar were not the only determining factor for the establishment of the 1983 Land Commission but “mounting pressure from public” more generally was also an important factor.411
4.2 1983 LAND COMMISSION’S TERMS OF REFERENCE The 1983 Land Commission’s terms of references for its work were approved under the Privy Council Decision No.75 dated 22 April 1983 by His Late Majesty King Taufa’ahau Tupou IV in Council.412 The third paragraph of the attachment to this Decision sets out the 1983 Land Commission’s terms of reference as follows: ‘WHEREAS The King in Council has deemed it desirable and necessary to review all practices, usages and laws relating to land in the Kingdom to meet the needs, interests and welfare of His subjects.
407 Above, n 403, p ii. 408 CD No.60 P-11a LSR 1/1 (18 January 1983). 409 PC No.75 P-11b LSR 1/1 V1 (22 April 1983). 410 Interview with Hon. Clive Edwards, Minister of Justice and Public Enterprises (Former 1983 Royal Land Commissioner and Participant of the 1975 Council of Churches Seminar ‘Land and Migration’) (Nuku’alofa, 19 October 2012). 411 Hon. Clive Edwards, above n 410. 412 Above, n 409. 99
AND WHEREAS it is deemed necessary that a Land Commission be established to inquire into such practices, usages and laws. NOW THEREFORE pursuant to the powers conferred by section 2(1) of the Royal Commission Act (Cap 42) the King in Council hereby issue this Commission and appoint the persons whose names are set out hereunder to be Commissioners and authorize them to review and update all practices, usages and laws relating to land in the Kingdom.’413
Between the resolution414 and the official establishment of the 1983 Land Commission, the proposed 6 members and secretary formulated its working proposals and submitted them to the King and Privy Council.
4.3 PERSONS APPOINTED AS COMMISSIONERS The Privy Council Decision No.75 LSR 1/1 dated 22 April 1983 officially appointed the six members of the 1983 Land Commission. The appointment of the members included three from the nobility and three from the commoners. The appointment was based on the positions and expertise of each member and also their social ranking. The six commissioners were as follows: (i) Baron Tuita was the appointed Chairperson of the 1983 Land Commission. At the time he was the Minister of Lands. The knowledge he had accumulated over the eight years when he had been the Minister by the time the Commission started, was indeed invaluable to the 1983 Land Commission’s work. It was also for the benefit of the future work of the Ministry of Lands that the Minister would provide guidance for the proper application of the law. He was also an estate holder and from the nobility class. (ii) Baron Vaea was the Minister of Labour, Commerce and Industry, and was appointed because it was also desirable that an input be made from this Ministry with regard
413 Above, n 409. 414 As shown in CD No.60 P-11a LSR 1/1 (18 January 1983). 100
to proper monitoring of aspects related to commerce and trade. He was also an estate holder and from the nobility class. (iii) Hon. Ve’ehala. It was also necessary that a representative view be received from the estate holders and nobility and this commissioner was appointed as one of this social hierarchy. When the 1983 Land Commission was established, the late Hon. Ve’ehala was the Governor of Ha’apai but before this position he was the first secretary for Tradition and Culture Department when it was established in 1957 and he was the secretary from 1957 to 1977.415 This commissioner’s immense knowledge regarding both culture and tradition of Tonga was most valuable to the 1983 Land Commission’s work. (iv) Mr. David Tupou. It was envisaged from the outset that the 1983 Land Commission’s work would include analysis of law, land practices and uses and constitutional implications. Being the Crown Solicitor, his expertise in law was indeed invaluable to the Commission. He was a representative of the commoners’ class. (v) Mr. Clive Edwards. Being a respected law practitioner, this commissioner had an expertise in law which was extremely important to 1983 Land Commission’s work. This commissioner also represented the commoners’ class. (vi) Mr. Tomiteau Finau. This commissioner was a successful businessman in Tonga. He was appointed as a representative from the commoners’ class. (vii) Mrs. ‘Alisi Taumoepeau was the appointed as secretary of the Commission. She was also a legal practitioner in Tonga.
The fact that three of the 1983 Land Commission members had a legal background resulted from the fact that most of the 1983 Land Commission’s task was to analyse and review the land laws, making it desirable that some members should have legal expertise. It was also vital for the 1983 Land Commission that its members have a degree of involvement in public affairs, all round experience and good common sense. The commissioners were carefully selected, not only in relation to their respective experience
415 Palace Office record, Tonga (16 November 2012) 101 and knowledge but also to represent equally the two social ranks which comprised most of the population in Tonga, the estate holders and the commoners.
4.4 WORK TIMELINE OF THE 1983 LAND COMMISSION The work of the 1983 Land Commission was divided into three different periods as described below. Originally the 1983 Land Commission was to prepare and submit its report to the King in Council on or before the 30 July 1984. However, due to the extensive work conducted in the second period of its operations, the 1983 Land Commission sought, and was granted, extension for the submission of its report to the 31 January 1985.
For the first period from May to December 1983, the 1983 Land Commission conducted some closed door workshops and also prepared some public awareness programmes which were telecast about its existence, work and proposals. This period was also allocated for receiving written submission from the public, debate and deliberations on land issues, in– depth examination of land issues, and publicly announcement of the 1983 Land Commission’s tentative proposals.
The second period which was originally scheduled from January to April 1984 was allocated for the public meetings where the tentative proposals were discussed. The scheduled time for the second period extended to the month of May 1984, resulting in the delay for the third period.
The third period scheduled from May to July 1984 was for the analysis, assessment and compilation of all the materials the 1983 Land Commission had collected from the first and second stages. However the timeframe for this period was also not adhered to, resulting in the extension of time for the submission of its report.
4.5 PUBLIC INVOLVEMENT IN THE 1983 LAND COMMISSION’S WORK The 1983 Land Commission strongly believed that involvement of the public was highly desirable and public meetings were conducted throughout Tonga. The aim of these public meetings was twofold: first, to disseminate land laws and issues to the public; and second, 102 to allow an opportunity for the people of Tonga to express their views, and to inform the members of the 1983 Land Commission of the public’s view about the issues relating to land.
The 1983 Land Commission considered that consultations with public would also provide a sense of public participation in the work done by the 1983 Land Commission and this was desirable, because, as it stated a ‘sense of pride, belonging and sharing in common achievement or misfortune should be promoted and maintained to avoid grievances and sectionalisation of blame.’416
4.6 OVERVIEW OF THE CONTENTS OF THE 1983 LAND COMMISSION’S REPORT The 1983 Land Commission compiled and released to the public its report on 31 January 1985. For ease of understanding of the 1983 Land Commission’s report, this part of the chapter provides a brief description of each section of the 1983 Land Commission’s report as follows.
Section A outlines the background to the establishment of the 1983 Land Commission and provides clarifications as to its constitution and terms of reference. (See part 4.1 of this chapter for brief explanation on the background for the establishment of the 1983 Land Commission).
Section B generally provides the methodology, objectives and timeline for the 1983 Land Commission’s work. There were three major periods for the 1983 Land Commission’s work and 12 main objectives to guide its work. The last part of this section sets out in detail the “Tentative Freehold Proposal” that was proposed to the public by the 1983 Land Commission. At the end of this section, there are three recommendations in respect of the limited freehold proposal.
416 Land Commission, above n 123, p 6. 103
Section C contains a summary of the 17 written submissions received by the 1983 Land Commission from Tongans resident both in Tonga and overseas. These submissions covered a wide area, but some were of no relevance to the 1983 Land Commission’s terms of reference.
Section D contains the 1983 Land Commission’s summary of the public meetings and consultations conducted throughout Tonga, and the oral submissions made by a few members of the public to the 1983 Land Commission. During period one, the 1983 Land Commission broadcast on radio and published in the Tongan government’s monthly newspaper, The Chronicle, the tentative issues and potential areas for review which needed investigation.
Section E provides a compilation of statistical data received by the 1983 Land Commission from the Ministry of Lands in relation to the land distribution throughout Tonga. The data first shows the total number of each type of landholding in the hereditary estates for each island, that is Tongatapu, ‘Eua, the two Niuas and Ha’apai and Vava’u together. The next part of the data relates to the total number of each type of landholding in the Crown land, again for each island. The following part of data provides the location, name of each estate holder and areas of land leased by the Government and boards in each island. The last part of the data provides the breakdown of land distribution for each estate holder. The final part of this section sets out 4 recommendations from the 1983 Land Commission in respect of the land distribution problems.
Section F contains a report of the voice of the people from the 470 public meetings and consultations conducted throughout Tonga by the 1983 Land Commission. These public meetings and consultations were to obtain information and opinions to support the review and recommendations, either for change or to preserve the status quo of the areas under review.
Section G is a detailed description and explanation of the prior Land Commission established in 1917. The nature of the work of the 1917 Commission differed significantly 104 from the work of the 1983 Land Commission because the 1917 Land Commission operated as a land court.
Section H describes the historical background that led to the establishment of the Land Court. This section also discusses the functions of the Land Court and the number of cases this Land Court had heard over the preceding ten years. At the end of this Section there are three recommendations made with regard to the Land Court.
Section I contains two reports. The first report is on the Samoan land system. The second report is from the Ministry of Lands, and it is generally about the Ministry’s procedures in relation to applications for each type of landholding. These two reports are annexed as Attachment A and B respectively in the 1983 Land Commission’s report.
Section J provides a detailed review of the Land Act417 with explanatory notes and recommendations and this is done section by section. The 1983 Land Commission recommended amendment to some sections of the Land Act418 by way of rewording, addition, deletion or repealing. There were also some sections that were recommended to remain unchanged.
Section K contains the 1983 Land Commission’s review of the 12 clauses of the Act of Constitution of Tonga relating to land.419 Changes were recommended to some clauses whereas the preservation of the status quo was recommended for the rest of the clauses.
Section L includes five general recommendations for the adoption of the recommendations in sections B, E, H, J and K. There is also one recommendation for the adoption of the Form of Lease as part of Section C. The last recommendation relates to the impossibility of complete distribution of land to every 16 year old Tongan male due to population growth and shortage of land.
417 [Cap. 63], Law of Tonga Vol.II 418 Above, n 417. 419 Above, n 13. 105
In its report the 1983 Land Commission included several recommendations and/or expressions of public concern for the improvement of the rights of women to land. There are three main recommendations which reflect the concern of the 1983 Land Commission to reduce the discriminatory nature of the land laws against women. These recommendations and concerns are identified and elaborated on in the following sections of this chapter.
4.7 RECOMMENDATIONS OF THE 1983 LAND COMMISSION DIRECTLY REFERRING TO WOMEN’S RIGHTS TO LAND
4.7.1 Widow’s rights The recommendation made by the 1983 Land Commission in respect of widow’s rights to land was to ‘[r]emove reference to fornication or adultery’420 as restrictions to the widow’s rights to land. These restrictions were found in the then section 74 (now section 80) of the Land Act.421 The section provided that: ‘[o]n the death of the lawful male holder of any tax or town allotment his widow shall be entitled to a life interest in such allotment which estate shall terminate on her re-marriage or upon proof in legal proceedings ... of her having committed fornication or adultery.’422
The 1983 Land Commission was faced with conflicting views as to what recommendation(s) should be made with regards to the widow’s rights under the then section 74 (now section 80). This was due to the fact that there was diversity in the public’s suggestions in respect of a widow’s interest as shown later under this section. The 1983 Land Commission considered that the restriction on the widow’s life interests was a moral question that terminates the widow’s life interest. ‘However both male holder and a widow
420 Recommendation in Land Commission, above n 123, p 216. 421 Referred to in this section as “the Act” which was [Cap. 63] in the 1967 Consolidation of the Laws of Tonga, Vol. II. 422 The Commission working and recommendation was based on the 1967 revised edition of the Land Act [Cap. 63] 106 have a life interest in tax and town allotments yet a male who is guilty of adultery or fornication will suffer no disability during the subsistence of the marriage of after death of wife. However a woman whose husband is deceased is penalized for her frailties and indiscretions.’423
Before going further with this recommendation, it should be made clear that this recommendation was to be effected as an equitable treatment measure for the widow in light of the limited freehold proposal and the proposed arrangement of the succession law under the then section 76 (now section 82) of the Act.424 Further if the freehold recommendation was to be effected and the ‘holder during his lifetime makes a grant, then the issue of the widow’s interest will not arise.’425
As far as public was concerned, 79 percent agreed that a widow should have a life interest after the death of a landholder.426 However, the public survey showed that there was no general support for the unqualified removal of the two restrictions (fornication and adultery) on the widow’s life interest. The focus of the public survey seemed to be the second or third wife’s rights against the rights of the male heir from the first marriage.
Also many members of the public seemed to want additional means of restraining widow’s rights. These additional means included termination of widow’s rights on grounds of fornication or adultery by a mere production to the Minister of Land of the certificate of birth of the widow’s illegitimate child who was conceived and born after the landholder’s death.427 Thus there would then be no need to go through the formal proof in court again. Others said that a widow from a second marriage should only have a life interest in half
423 Explanatory Notes (i) for recommended amendment to section 74 (now section 80) in Royal Land Commission, above, n 123, p 216. 424 Explanatory Notes (ii) in Royal Land Commission, above, n 123, p 216. 425 Explanatory Notes (iii) in Royal Land Commission, above n 123, p 216. 426 This percentage was calculated from the table for “Widow’s Rights” public consultation in page 98 of the Commission’s report. It was calculated by dividing the number “For” with “Total number present” and multiply by 100. i. e 49/62 x 100/1 = 79.03%. The author is mindful of this figure because the total number present in these public consultations does not seem to represent the whole population of Tonga at the time. 427 Voice of the people from ‘Eua in Royal Land Commission, above n 123, p 123. 107 of the holder’s allotments, while the other half is given to the male heir from the first marriage.428 Others submitted that the widow’s interest should not be for life; instead it should be for a limited period or the male heir, if he is of age, should succeed immediately.429 Others suggested that widows should be given the right to be able to lease the allotments.430
Some members of the public suggested for women to have succession limited only to town allotments and not tax allotments.431 One other suggestion from the public was that: ‘Women’s rights to land be by inheritance and not by application i.e the entitlement to be granted an allotment from hereditary estates or Crown Lands continue as presently provided, which is restricted to Tongan males.’432
Therefore as can be seen from the data collected from the public meetings, the recommendation made by the Commission with regard to the removal of the two restrictions on the widow’s rights, does not seem to have the public’s full and unqualified support. On the other hand, the public supported the widow’s interest to some extent, and suggested more limitations on such interest especially if the widow is not from a first marriage.
4.7.2 Daughter’s rights The 1983 Land Commission did not make specific recommendations with regard to the rights of a daughter in its report, despite concerns raised from the public. Daughters’ rights were provided for under the rules of succession in section 41 for hereditary estates and section 76 (d) (now section 82 (d)) of the Land Act.
428 Voice of the people from ‘Eua, Tongatapu: Nuku’alofa District, Tongatapu: Eastern District and Tongatapu: Central District in Royal Land Commission, above n 123, pp 123 & 126 & 132 & 136 429 Voice of the people from Ha’apai in Royal Land Commission, above n 123, p 121. 430 Voice of the people from Tongatapu: Nuku’alofa District in Royal Land Commission, above n 123, p 130. 431 Voice of the people from Tongatapu: Eastern District in Royal Land Commission, above n 123, p 132. 432 Voice of the people from Tongatapu: Eastern District in Royal Land Commission, above n 123, p 132. 108
Although the 1983 Land Commission did not make specific recommendations with regard to daughters’ rights, its recommendation to include “legitimated person” under the rule of succession to both the hereditary estate and allotments in clause 111 of the Act of Constitution of Tonga, and section 41 and section 76 (now section 82) of the Land Act respectively, also included a legitimated daughter.
In its recommendation to amend clause 111 of the Act of Constitution of Tonga, the 1983 Land Commission recommended the words ‘or legitimated’ be added and that the clause be re-written as ‘[c]hildren born in wedlock or legitimated ...’433
The 1983 Land Commission explained that the reasons for including ‘or legitimated’ in these clauses of the Act of Constitution of Tonga are the same as the reasons for its recommended inclusion of those words in section 41 and in the then section 76 of the Land Act.434 These reasons are stated below.
In its recommendation to amend section 41, the 1983 Land Commission recommended the change to be as follows: ‘(a) Only persons born in wedlock or legitimated may inherit. (b) Repeal (c) No change (d) No change (e) No change (f) No change (g) No change (h) If upon the death, insanity or conviction for an offence punishable by imprisonment for more than two years of any holder there is no heir to succeed to the title and estates, shall revert to the King (Crown) and shall
433 Tonga Royal Land Commission, above n 123, p 273. 434 Tonga Royal Land Commission, above n 123, p 273. 109
be dealt with as Crown land until such time as the King grants the title of honour when such estates shall be granted to the holder of the title.’435
For the then section 76 (now section 82) the 1983 Land Commission recommended the following changes: ‘Subject to any grant made by the holder duly registered and also to the life interest of the widow the succession to the tax or town allotment shall be as follows: - (a), (c) to (g) – No Change - (b) only person born in wedlock or legitimated may inherit.’436
The 1983 Land Commission explained that the proposed rearrangement of section 76 (now section 82) was necessary to incorporate the freehold proposals. If no grant is made by the holder then the amended provisions above apply.437 The 1983 Land Commission further explained that ‘legitimate person’ was included for the same reason explained for its inclusion under section 41. The relevant reasons were set out under the explanatory notes for section 41, where it is stated that: ‘Subsection (a) is to be enlarged to include legitimated children. In some cases a son or daughter are born before marriage of parents and under Section 4(c) of the Legitimacy Act (Cap.32) a legitimated person can succeed to the title and estate. However the wording under section 41 (a) and reference to ‘wedlock’ create an apparent variation or conflict.’438
The recommended inclusion of legitimated person in the rule of succession to hereditary estates and allotments also included legitimated daughters. A very large proportion of the public responses, some 90 percent439, supported the concept of illegitimate children succession rights to land but only in subordination to the natural children. Under section
435 Recommendation in Tonga Royal Land Commission, above n 123, p 193. 436 Recommendation in Tonga Royal Land Commission, above n 123, p 219. 437 Explanatory Note (i) in Tonga Royal Land Commission, above n 123, p 219. 438 Explanatory Note (i) in Tonga Royal Land Commission, above n 123, p 192. 439 Tonga Royal Land Commission, above n 123, p 94. Calculation conducted by dividing the number “for” against the total number and multiply by 100. i. e 109/121 x 100/1 =90%. 110
76,440 illegitimate children, including an illegitimate daughter, had no right to the landholder’s land whereas a daughter born in wedlock had a life interest subject to some limitations.441
The public’s voice with regard to daughters’ rights varied throughout Tonga. The proposal for daughters’ rights’ put to the public by the 1983 Land Commission was to remove the termination of a daughter’s interest on marriage and place daughters on equal level with sons.442 From the data, there was 91 percent443 public support of the 1983 Land Commission’s proposal in relation to daughters. The 1983 Land Commission reported that any change to daughters’ rights implied a change to the law of succession.444
Another indication of public support for daughters’ rights was the 84 percent support towards the concept of women’s rights. The 1983 Land Commission noted that ‘[e]qual rights for women were also submitted by the people other than those who supported the concept of daughters having equal rights of succession with sons.’445
Despite having received indications of very strong support from the public in relation to daughters’ rights to land, the 1983 Land Commission did not make recommendation to change the rules of succession with regard to daughter’s rights in both section 41 and the then section 76. The 1983 Land Commission was perhaps mindful of the fact that under the proposed limited freehold recommendation, daughters would have an equal opportunity of owning lands as sons.
In brief, the limited rights of daughters to inherit hereditary estates and allotments under the rules of succession basically remained the same. The only recommended change in
440 Land Act [Cap. 63], Law of Tonga 1967 Vol. II 441 This is still the status in the succession rule with the current Land Act. 442 Note (iii) in Tonga Royal Land Commission, above 123, p 93. 443 Tonga Royal Land Commission, above n 123, p 93. Calculation conducted by dividing the number “for” against the total number and multiply by 100. i. e 158/173 x 100/1 =91%. 444 Note number (ii) in Tonga Royal Land Commission, above n 123, p 93. 445 Tonga Royal Land Commission, above n 123, p 97. 111 this aspect was the inclusion of ‘legitimated persons’ to be eligible to succeed, which would include legitimated daughters.
4.8 WOMEN’S ENTITLEMENT TO LIMITED FREEHOLD The most important recommendation made by the 1983 Land Commission in terms of women’s rights to land was its recommendation to include a limited freehold in the land tenure system of Tonga. The detail of this proposal makes up a major part of section B. The 1983 Land Commission considered that the circumstances in Tonga did not yet allow for the complete application of the concept of freehold; instead the 1983 Land Commission drafted what it referred to as “limited freehold” which the 1983 Land Commission considered appropriate in Tonga. Followings are the characteristics of the limited freehold recommended by the Commission: ‘(a) Rights or estates of existing landholders excluding estate holders (Nobles and matapules) be converted from life interest to freehold. (b) All landholders to include holders of tax and town allotments only. (c) Eligibility to hold freehold land limited to Tonga subjects either male or female (incorporated bodies excluded). (d) A Tongan Protected Person or holder of a Tongan Protected Persons Passport shall not be deemed to be a Tongan for the purpose of this part of the Act. (e) Law of succession to land shall be amended: (i) in the case of nobility this shall remain unaltered. (ii) in the case of Tongan subjects land can be disposed to members of his family subject to restrictions imposed by the Act (iii) disposition of land shall be limited to the immediate members of the holder’s family, then to his extended family or with the consent of the Minister to another Tongan subject.’446
In brief, the limited freehold was recommended to replace the life interest in town and tax allotments only, and significantly both Tongan male and female subjects were entitled to
446 Tonga Royal Land Commission, above n 123, p 17. 112 hold such freehold land. The devolution of the proposed freehold land was to be first to the immediate family members of the landholder and, in the absence of such, to the extended family members. The devolution of the freehold land to a Tongan subject other than the immediate or extended family member must be approved by the Minister of Lands. The proposed freehold system limited the right of succession to land within the family circle only, whereas the general concept of the freehold in other jurisdictions gives the landowner absolute right to dispose of the land as he or she wishes.
The 1983 Land Commission recommended that the then section 76 (now section 82) be amended by deleting the introductory part of the section whereby it states ‘Subject to the life interest ... as follows;’ and to replace it with: ‘Subject to any grant made by the holder duly registered and also to the life estate of the widow the succession to the tax or town allotment shall be as follows;’447
Further, the 1983 Land Commission recommended that in order to accommodate the recommended freehold system, section 4 of the Land Act which declared that every right to land is a life interest and subject to restrictions in the Land Act, be amended by adding a proviso as follows: ‘Provided that the holder of a tax or town allotment may during his lifetime grant the whole or part of his allotment of such size as allowed by the law to any of his children, grandchildren or brothers.’448
The rights and estates of the estate holders (nobles and matapules) were not to be affected by the proposed ‘limited freehold’ system.
The 1983 Land Commission considered that the life interests and restrictions on landholder’s estate prescribed in the land laws ‘are the greatest inhibiting factors to any
447 Recommendation to section 76 (now section 82) in Tonga Royal Land Commission, above n 123, p 219. 448 Recommendation to section 4 in Tonga Royal Land Commission, above n 123, p 160. 113 improvement, development of commerce, trade or progress generally’449 on the land. Because the freehold concept was a new concept to Tonga, the 1983 Land Commission recommended a limited freehold proposal for discussions and testing of the public’s reaction.
The 1983 Land Commission recommended that: ‘ devolution of land to the eldest male heir under the succession provisions of the Act embodied a preferential, selective and selfish element in our law. The eldest male heir who is first by accident of birth gets all at the expense of every other brother or sister. It would be less than frank not to refer to it as an unchristian like and a privileged creating system.’450
From the public survey and consultation, 90 percent451 of those who attended supported the tentative limited freehold scheme proposed by the 1983 Land Commission and 95 percent452 of those supporters preferred the freehold land to devolve within the family circle only. There were some other major issues raised in relation to the freehold proposal such as the ability of the landholder to ‘disenfranchise his heirs and the powerful and richer class will grab all land – the rich will get richer and poor more poorer ... There will be a rapid breakdown in the national traditions and customs.’453 The 1983 Land Commission’s response to these concerns was that these arguments were misconceived and failed to take note of the restrictions clearly set out in the proposed freehold system.454
449 Tonga Royal Land Commission, above n 123, p 15. 450 Tonga Royal Land Commission, above n 123, p 16. 451 Tonga Royal Land Commission, above n 123, p 91. Table shows survey on who are for and against the freehold proposal where it shows that 263 people were for the proposed freehold whereas 29 were against the proposal. Calculation was 263/292 x 100/1 = 90%. 452 Tonga Royal Land Commission, above n 123, p 91. Table shows survey on who are for the freehold proposal where it shows that 263 people were for the proposed freehold. 255 out of this 263 people preferred freehold land devolution within the family circle. Therefore calculation is 255/263 x 100/1 = 96.95%. 453 Tonga Royal Land Commission, above n 123, p 17. 454 Tonga Royal Land Commission, above n 123, p 17. 114
The 1983 Land Commission believed that the proposed limited freeholding will be advantageous to the Tongan land system and it will also ‘remove some of the rigid restrictions to the uses of the land.’455 The 1983 Land Commission directed caution to be observed about the distinctions between the proposed limited freehold and the ‘normal concept of freehold defined in the land system of other countries.’456
4.9 OMISSIONS FROM THE 1983 LAND COMMISSION’S REPORT 4.9.1 Deserted wives’ rights The 1983 Land Commission did not make any specific recommendation in relation to the rights of deserted wives despite concerns raised by some members of the public. Both the Constitution and Land Act do not provide for the right of deserted wives. The only legislation that provides for any right of deserted wives is the Maintenance of Deserted Wives Act457, section 5 of which provides that: ‘If the Magistrate makes an order under section 2 and the husband refuses or neglects to obey the order or is absent from the Kingdom, the Magistrate may, in addition to or as an alternative to any other order, order that the possession for the time being of the tax and town allotment of the husband be given to the wife and the produce of tax and town allotment shall be used in support of the wife and the children, if any.’ 458
Therefore the rights of a deserted wife to her husband’s allotment are only limited to possession until further order from the court is made in relation to such allotment.
The public raised the issue of deserted wives’ rights in two ways. One was through the 84 percent459 support towards ‘women’s rights’ to land. The 1983 Land Commission noted
455 Tonga Royal Land Commission, above n 123, p 17. 456 Tonga Royal Land Commission, above n 123, p 17. 457 [Cap. 31] (Tonga). 458Section 5, above n 457. 459 This figure was calculated from the table for “Women’s Rights” public consultation in page 97 of the Commission’s report. It was calculated by dividing the number “For” with “Total number present” and multiplies by 100. i. e 101/121 x 100/1 = 83.47%. 115 that this concept was also applicable to the rights of deserted wives.460 Further in a more specific way, the survey on the ‘protection of innocent wife/children’, showed a 98 percent461 support towards an ‘innocent wife (with children) who is deserted by the land holder to live with another woman or remarries when there is no matrimonial misconduct on the part of the wife.’462
Consequently, there seemed to be strong support for the right of an innocent wife to her adulterous husband’s allotment, and for the liability of the adulterous husband to forfeit his land and surrender it to the innocent wife and their children.463 At the end of the 1983 Land Commission's report, there was no recommendation made to amend the land laws to provide for the rights of deserted innocent wives despite the public’s strong support.
4.9.2 Entitlement to landholding With regard to persons entitled to land, section 43 of the Land Act provides that only male Tongan subjects by birth of 16 years of age and above are entitled to land. Although there seemed to be little discussion in relation to this issue, the 1983 Land Commission recommended to increase the age for entitlement of male Tongan subjects to hold land in Tonga to 21 years of age.464
No reference was made in the recommended change to section 43 to the gender restriction on the entitlement to landholding. However the public’s strong support towards the limited freehold proposal can also be interpreted as an indication of support for removing the gender restriction on the entitlement to landholding under a limited freehold system.
460 Tonga Royal Land Commission, above n 123, p 97. 461 This figure was calculated from the table for “Protection of Innocent Wife/Children” in page 97 of the Commission’s report. It was calculated by dividing the number “For” with “Total number present” and multiplies by 100. i. e 50/51 x 100/1 = 98%. 462 Tonga Royal Land Commission, above n 123, p 112. 463Voice of the people from ‘Eua, Tongatapu: Eastern District & Tongatapu: Central District, Tonga Royal Land Commission, above n 123, pp 122, 134 & 137. 464 Recommended change to section 43 in Tonga Royal Land Commission, above n 123, p 194. 116
4.10 CONCLUSION There were a total of 95 recommendations in the 1983 Land Commission’s report. Three were made in section B, four in section E, three in section H, 77 under section J and eight in section K. However, only three were related to reducing discrimination against women’s rights in relation to land.
It was apparent also that so far as the public was concerned, some districts were more concerned with women’s rights to land than others. But in general, there was strong support for the improvement of women’s rights in relation to land, and this may be considered as a sign of some progress towards a more gender friendly land laws in Tonga.
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CHAPTER 5: FATE OF THE 1983 LAND COMMISSION’S RECOMMENDATIONS
INTRODUCTION The 1983 Land Commission’s report was submitted to the Privy Council in January 1985. This was after the 1983 Land Commission had operated for almost two years since 22 April 1983. The report compiles the findings of the 1983 Land Commission from all the inquiries it conducted during its term but most importantly the report contained 95 recommendations based on their findings. The report also contained an analysis of the land laws465 and the public’s perception from public meetings conducted by the 1983 Land Commission throughout Tonga. The 95 recommendations the 1983 Land Commission made were all related to changing not only the Act of Constitution of Tonga, and the Land Act, but also the land practices.
This chapter focuses on the non-implementation of the 1983 Land Commission’s 95 recommendations. The first section outlines the law in relation to submission of the reports of Royal Commissions. The second section is an outline of the general practice of what happens to a Commission’s report after it is submitted to the appropriate authority. The third section describes what happened to the 1983 Land Commission’s report after it was submitted to the Privy Council. The fourth section is descriptive of what could have been done with regards to the 1983 Land Commission’s report to ensure that at least some of its recommendations were implemented. The last section concludes this chapter.
5.1 LAWS IN RELATION TO 1983 LAND COMMISSIONS’ REPORTS The Royal Commissions Act466 is the piece of legislation that authorises the establishment and work of any Commission of Inquiry desired by the King of Tonga. It provides that ‘[t]he King in Council may ... issue a Commission under his hand appointing one or more Commissioners and authorizing such Commissioner or Commissioners to inquire into any
465 Act of Constitution of Tonga [Cap.2], Vol.1 1967 Revised Edition and Land Act [Cap.63], Vol. 2 1967 Revised Edition. 466 [Cap. 41] (Tonga). 118 matter in which an inquiry would in his opinion be for the public welfare.’467 The details of a Commission are described in section 1(2) which states: ‘Every Commission shall specify the subject, nature and extent of the inquiry, and may contain directions generally for the carrying out of the inquiry and in particular as to the following matters — (a) the manner in which the Commission is to be executed; (b) the appointment of a chairman; (c) the constitution of a quorum; (d) the place and time where and within which the inquiry shall be made and the report thereof rendered; (e) whether or not the inquiry shall be held in public.’468
The most important section with regards to the presentation of the report of a Commission is section 4(1) which provides that ‘[i]t shall be the duty of the Commissioners to make a full, faithful and impartial inquiry in accordance with the terms of the Commission and to report the result of the inquiry to His Majesty accordingly.’469 However, the Royal Commissions Act470 fails to prescribe what is to be done to the report after it has been submitted to His Majesty.
5.2 GENERAL PRACTICE WITH REGARDS TO COMMISSIONS’ REPORTS This section is based on a description of the practice of two Royal Land Commissions on Land471 with regard to the submission of their respective reports.
In accordance with section 4(1) of the Royal Commissions Act, the 1983 Land Commission submitted its report to the King in Privy Council in January 1985.472 Only a
467 Section 2(1), above n 466. 468 Above, n 466. 469 Above, n 466. 470 Above, n 466. 471 1983 Land Commission and 2008 Land Commission. 472 Interview with Lord Tupou, Honorable Commissioner 2008 Royal Land Commission and Former Commissioner for 1983 Royal Land Commission, (Nuku’alofa, 19 November 2012). 119 few copies of the 1983 Land Commission’s report were printed before the 1983 Land Commission was instructed by the Privy Council to cease printing copies.473 This report was not made public until recently when it was attached as Appendix 12 to the 2008 Land Commission’s Final Report on 1 June 2012. There is no indication anywhere, including the records of the Legislative Assembly, that the 1983 Land Commission’s report was ever tabled or discussed by the Legislative Assembly of Tonga.
The 2008 Land Commission took a different approach when submitting its Final Report. On 1 June 2012, the 2008 Land Commission submitted Three Volumes of its Final Report together with 29 Attachments to His Majesty King George Tupou VI in accordance with the 2008 Land Commission’s obligation under section 4(1) of the Royal Commissions Act.474 Immediately after, the 2008 Land Commission made as many copies as it could possibly reproduce and distributed them widely to various interest Government Departments, Non-Government Organizations and Civil Society Organizations, including women’s interests groups.475 The 2008 Land Commission also created its own website, where copies of its Final Report and other works it completed, are available to the public, free of charge. The wide publication and distribution of the Final Report was an attempt to ‘avoid repetition of what did not happen to the 1983 Commission’s report.’476
Apart from section 4(1) of the Royal Commissions Act stating that the report of a Royal Commission is to be submitted to the King in Privy Council, there is nothing in the law to dictate what is to be done with reports of Commissions established under the Act. It seems that it was really for the Government to consider whether or not to implement the 1983 Land Commission’s recommendations. As for the 2008 Land Commission’s report, the King approved the distribution of the Final Report to Parliament and Government and
473 Hon. Clive Edwards, above n 410. 474 His Late Majesty King George Tupou V who instigated the establishment of the 2008 Commission passed away on 18 March 2012. 475 Interview with Mrs. Gloria Pole’o, Chief Clerk of the Legislative Assembly of Tonga and Former Secretary for 2008 Land Commission (Nuku’alofa, 11 June 2012) 476 Mrs. Gloria Pole’o, above n 475. 120 therefore the report could be ‘tabled in the House either by the Speaker or by Government.’477
5.3 WHAT HAPPENNED TO THE 1983 LAND COMMISSION’S REPORT AFTER SUBMISSION TO PRIVY COUNCIL? The 1983 Land Commission’s report was submitted to His Majesty in Privy Council in January 1985.478 In 1986 it was reported that ‘the Commission’s report has not been made public, and consideration of it has been deferred by the Privy Council until 1986.’479 By 1992 it was reported that ‘[e]ven the report and recommendations of the [1983] Land Commission which was mandated in the 1980s to review the land laws have not been approved by the Government.’480
The 1983 Land Commission’s report was not agreeable to the Privy Councillors, who were all members of the nobility, because some of the recommended changes to the land laws, were considered by the nobles a “threat” to their status as holders of the estates.481 This was the reason why the 1983 Land Commission’s report was never reported to have been discussed or tabled in the Parliament.482 Mr. Edwards was adamant that the nobles’ dissatisfaction with some of the 1983 Land Commission’s recommendations was the main reason why the report was never mentioned again after it was submitted to the Privy Council.483
The 1983 Land Commission’s report was never publicly heard of until it was referred to in the 2008 Land Commission’s final report, and attached to this report as an appendix. The 2008 Land Commission’s final report recited the important recommendations of the 1983 Land Commission’s report. In fact the recommendations relating to women’s rights
477 Email from Gloria Guttenbeil-Pole’o
5.4 WHAT COULD BE DONE TO ENSURE IMPLEMENTATION OF THE COMMISSION’S RECOMMENDATIONS? The discretion of whether to proceed with a Commission’s report is vested solely in His Majesty and the Privy Council. This is indictated by what happened to the 1983 Land Commission’s report. It was His Majesty in Council’s sole discretion either to proceed with tabling of the 1983 Land Commission’s report in the Legislative Assembly and drafting legislative amendments to effect the recommendations in the 1983 Land Commission’s report, or not to so proceed.
It has been 28 years now and there is still no implementation of part or whole of the recommendations in the 1983 Land Commission’s report. It remains to be seen whether the approach envisaged and executed by the 2008 Land Commission in its distribution and publication of its Final Report will be successful in processing implementation of the recommendations. At present there is a “housekeeping bill”, a compilation of some of the recommendations in the 2008 Land Commission’s report which are considered by the Attorney General and Minister of Lands more likely to receive less “fuss” from the Legislative Assembly and to be passed as law.485 However, none of the recommendations relating to women’s rights to land are in this “housekeeping bill”.486
484 Mrs. Gloria Guttenbeil-Pole’o, above n 475. 485 Interview with Mr. Neil Adsett, Attorney General, Tonga (Nuku’alofa, 14 November 2012). 486 Mr. Neil Adsett, above n 485. 122
5.5 CONCLUSION The 1983 Land Commission’s report contained a total of 95 recommendations as mentioned in the earlier chapter. These recommendations related to changes to the Act of Constitution of Tonga and Land Act and also the land practices in Tonga. The report was submitted to the King in Privy Council in accordance to section 4(1) of the Royal Commissions Act, and since then there has not been any attempt to implement some or any of the recommendations in this report. The fate of the 1983 Land Commission’s report is still in the hands of the Government 28 years after it was received by the Government. However, most of the recommendations in the 1983 Land Commission’s report are now part of the 2008 Land Commission’s Final Report. This may mean that these recommendations will receive more attention from relevant Tongan authorities and policy makers in formulating land policy to consider in the near future, or it may not. Time alone will tell.
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CHAPTER 6: 2008 LAND COMMISSION: RECOMMENDATIONS AND FINDINGS WITH REGARDS TO WOMEN’S RIGHTS TO LAND
INTRODUCTION
The focus of this chapter is the Royal Land Commission which was appointed in 2008 and reported in 2012 (referred to here in this chapter as the “2008 Land Commission”). On 9 October 2008 His Late Majesty, King George Tupou V, in Privy Council made a decision authorising the establishment of the 2008 Land Commission.487 Authority for the King to make such a decision is provided by the Royal Commission Act.488 The establishment of the 2008 Land Commission was confirmed by the King in Council on 10 October 2008.489 The 2008 Land Commission was the second Land Commission established in Tonga to inquire into land issues and review the land laws. The first was the 1983 Land Commission that was discussed in chapter 4 and chapter 5 of this thesis.
The first section of this chapter explains the reasons for the establishment of the 2008 Land Commission. The second section describes the 2008 Land Commission’s terms of reference for its work, while section three describes the members of the 2008 Land Commission and their respective credentials. The fourth section discusses the 2008 Land Commission’s timeline, and section five explains the reasons for the public’s involvement. The sixth section provides an overview of all the chapters in the 2008 Land Commission’s Final Report. The seventh section describes and analyses the recommendations and proposed legislative amendments of the 2008 Land Commission directly relating to women’s rights. The last section provides a conclusion to this chapter.
487 The term ‘Commission’ is defined in Bryan A. Garner et al (eds.), Black’s Law Dictionary (7th ed, 1999) as ‘A body of persons acting under lawful authority to perform certain public services.’ 488 Section 2(1), Royal Commission Act [Cap. 41] (Tonga) - ‘The King in Council may whenever he shall deem it advisable to do so issue a Commission under his hand appointing one or more Commissioners and authorizing such Commissioner or Commissioners to inquire into any matter in which an inquiry would in his opinion be for the public welfare. 489 CD No.168 P-11a WPF LSR 1/1 (10 October 2008) 124
6.1 BACKGROUND TO THE ESTABLISHMENT OF THE 2008 LAND COMMISSION
At the very same time as Tonga was preparing for political reform490, His Late Majesty King George Tupou V in Council issued the appointment and terms of reference dated 9 October 2008 for the establishment of a Royal Commission491 which was confirmed by the King in Privy Council on 10 October 2008.492 At this time they were circulating in Tonga various proposals for amendments to the laws of Tonga, particularly the Constitution and its electoral laws so as to accommodate ideas for political change, but none of these amendments related to land, the Land Act or Part III of the Act of Constitution of Tonga.
His Late Majesty King George Tupou V was mindful of the scheduled political reform to take effect in 2010.493 There were also many land issues arising in relation to both the estate holders and public at large. These issues included the reported unsatisfactory performance of the Ministry of Lands staff in processing various land transactions and the long delays with work to finalise the registration of interests and titles to land, which were a serious concern for the public.494 Another serious issue was the unlawful selling of land and unlawful tenancy agreements in the island of Vava’u and Ha’apai that were brought to the Government’s attention in 2007.495 Further, it is reported that His Late Majesty was also concerned about the limited rights of women to land and wanted this issue ‘to be dealt with during his reign.’496 Another issue was the non-availability of the estates of nobles
490 The political reform was scheduled to be effected in November 2010. 491 When the Commission was established in October, the Constitutional and Electoral Commission was already established under Act No.5/2008 which came into effect on 23 July 2008. The Constitutional and Electoral Commission was established to ‘consider aspects of Constitutional and Electoral Reform in Tonga, to make recommendations and produce draft legislation in preparation for 2010 elections under the changed system and for other related purpose.’ 492 Mrs. Gloria Guttenbeil-Pole’o, above n 474. 493 Email from Gloria Guttenbeil-Pole’o
6.2 2008 LAND COMMISSION’S TERMS OF REFERENCE The 2008 Land Commission’s terms of reference were set out in the Direction under the hand of His Late Majesty King George Tupou V as follows: ‘... WHEREAS WE are empowered pursuant to Section 2(1) of the Royal Land Act 1960 (as amended) [Cap. 41 of the 1988 Revised Edition of the Laws of Tonga] to issue a Commission whenever We deem it advisable for the public welfare. WHEREAS WE are of opinion that it is desirable for the public welfare to issue a Commission to inquire into all matters whatsoever concerning the land laws and practices of our Kingdom.
NOW THEREFORE WE do hereby establish a Commission under and in terms of the aforesaid Act to be known as the Royal Land Commission, to inquire (without changing the basic land tenure of our Kingdom) into all matters whatsoever concerning the land laws and practices of our Kingdom with a view to providing more effective and efficient practices; and to report thereon to Us in Council with all the expedition, but in any event on or before the 30th November 2011, together with recommendations (including draft primary and subordinate legislation to give effect to their recommendations.)’497
The 2008 Land Commission was also directed to ‘[c]onsult widely and publicly concerning the matters to be inquired into by them’498 but the 2008 Land Commission’s deliberations ‘shall not be held in public.’499 The consultations carried out by the 2008 Land Commission were both within Tonga and also overseas, which made them different
497 Direction by His Late Majesty King George Tupou V in Privy Council (9 October 2008). 498 No.(d), above n 497. 499 No.(e), above n 497. 126 from the public consultations conducted by the 1983 Land Commission, which were only carried out within Tonga. 500 In this sense, there was a wider audience for this 2008 Land Commission.
The 2008 Land Commission was required to report to the Privy Council on or before 30 November 2011. However nearing the end of its term, the 2008 Land Commission sought and obtained extension of its term of appointment until 30 March 2012. This was approved by the Privy Council.501 The extension sought was to ‘allow more time for the [2008 Land] Commission to consider the numerous proposals received and to draft the legislative amendments required to implement the recommendations made’502 in its final report.
On 1 June 2012, the 2008 Land Commission released its final report, a three volume compilation resulting from more than three years work, including 120 recommendations, two Bills for new legislation and six Amendment Bills.
6.3 MEMBERSHIP OF THE 2008 LAND COMMISSION The Cabinet Decision No.168 officially appointed four members of the 2008 Land Commission and its secretary. These commissioners were appointed mainly because of their legal knowledge and expertise and their social status.503 It was desirable that the majority of the commissioners have legal expertise because the 2008 Land Commission’s task was to analyse and review the land laws. Three of the commissioners, and the secretary, were respected senior counsels of the Tongan bar.
The four commissioners were as follows: (i) Baron Fielakepa was appointed to be chairperson of the 2008 Land Commission. At the time of the 2008 Land Commission, Baron Fielakepa was the Number One Noble’s Representative for Tongatapu to the Legislative Assembly. He was, and still
500 Mrs. Gloria Guttenbeil-Pole’o, above n 493. 501 PC No. 56 P-11b LPS 124 1/2/4 (28 November 2011). 502 2008 Royal Land Commission (Tonga), above n 162, p 20. 503 Email from Gloria Guttenbeil-Pole’o
is, one of the four Law Lords appointed by His Late Majesty King George V. Baron Fielakepa is also a respected member of the Judicial Committee of the Privy Council. He was one of the few awardees of the Grand Cross of the Order of Queen Salote in 2008. Baron Fielakepa previously held the official government posts of Minister of Lands, Survey and Natural Resources,504 Governor of Ha’apai, Private Secretary to His Late Majesty King Taufa’ahau Tupou IV, and the Lord Chamberlain. (ii) Lord Tupou was appointed because of the immense legal knowledge and expertise he possessed. At the time of the appointment, Lord Tupou was, and still is, a senior member of the Tongan legal profession, but most importantly he was one of the four Law Lords appointed by His Late Majesty King George Tupou V. Lord Tupou, when he was Solicitor-General, was also one of the six commissioners for the 1983 Land Commission. He later became the Attorney General and Minister for Justice. (iii) Mr. Kahunungu Barron-Afeaki was also appointed because of his legal knowledge and expertise. Mr Barron-Afeaki was at the time of his appointment, and still is, a senior member of both the Tongan and New Zealand legal profession. (iv) Ms. Robina Nakao was, and still is, a prominent business woman. She was appointed to represent women in general and also the private sector.505 (v) Mrs. Gloria Guttenbeil-Pole’o was appointed as secretary of the 2008 Land Commission, because of her commitment and dedication in a similar role for a previous Commission.506 She was, and still is, one of the respected senior lawyers in the Tongan legal profession.
Before the 2008 Land Commission commenced its first phase in early 2009, commissioner Nakao resigned from the 2008 Land Commission due to work commitments which in effect would impede her commitments to the 2008 Land Commission’s work.507 There was no one appointed by the Privy Council in place of Ms. Nakao when she resigned. The
504 Baron Fielakepa was the Minister of Land, Survey, Natural Resources and Environment from the year 2001 to 2006. 505 Lord Tupou, above 472. 506 Mrs. Guttenbeil-Pole’o was the secretary for the Uoleva Commission operated in 2008, to inquire to the cause of fire in November 2006 to the Uoleva Palace at Tatakamotonga. 507 Mrs. Gloria Pole’o, above n 475. 128
2008 Land Commission commenced its work in early 2009 with three commissioners and a secretary.
6.4 WORK TIMELINE OF THE 2008 LAND COMMISSION The work of the 2008 Land Commission was divided into three major phases. From the outset the 2008 Land Commission divided its work into three phases but did not set a fixed time for each phase. This was mainly to avoid unnecessary complications if there was an overlap in the scheduled time.
Phase One commenced from January 2009 and lasted until January 2010.508 In Phase One, the commissioners conducted various inquiries into the work of all the Divisions of the Ministry of Lands in the course of an overall review of the Ministry of Lands which was conducted by the 2008 Land Commission. The inquiries and review of the Ministry of Lands was considered appropriate because of the reported concerns from the public of their dissatisfaction with the performance of the Ministry of Lands, especially the long delays with work and with the finalisation of the registration of interests and titles to land.509 The 2008 Land Commission conducted interviews with some employees of the Ministry of Lands and visited all its divisions. Assessments were also conducted on the records about record security, the filing system, the database of backlog files and the role of information technology in record keeping and file management.510 As part of Phase One, the 2008 Land Commission visited four overseas land registry offices511 and a visit was conducted solely by one of the commissioners to the Cook Islands.512 The main purpose of these overseas visits was to identify some aspects from the four land registries that could be adopted in the Ministry of Lands to improve its work. Phase One was completed in January 2010 and an Interim Report of the 2008 Land Commission’s findings and recommendations with regard to Ministry of Lands was submitted to His
508 2008 Royal Land Commission (Tonga), above n 162, p 137. 509 2008 Royal Land Commission (Tonga), above n 162, p 3. 510 2008 Royal Land Commission (Tonga), above n 162, p 4. 511 Land Registry Offices in Wellington (New Zealand), Apia (Samoa), Singapore and Sydney (Australia). 512 Lord Tupou travelled to Cook Island for a meeting on a separate matter and used the opportunity to also visit Cook Island’s land registry office. 129
Majesty King George Tupou V on 25 February 2012.513 A description of the problems with the work of the Ministry of Lands’ which were examined under Phase One, together with appropriate recommendations for improvement in administration and legislative proposals, are dealt with in chapter 5 of the 2008 Land Commission’s final report.514
Phase Two commenced in February 2010 and was completed in April 2010. Phase Two involved inquiries into land dealings through the Internet that were suspected to be contrary to the Land Act and laws of Tonga. These allegedly illegal land dealings were conducted by real estate and commission agents, mainly in Vava’u and Ha’apai. There was no evidence that such dealing occurred on other islands in Tonga. For this Phase, the 2008 Land Commission held public inquiries hearings from victims and others who were involved in these illegal land transactions. Written submissions were also received from foreigners and Tongans who were affected by these dealings. The inquiries started in Vava’u and were completed in Tongatapu. The problems revealed from the inquiries conducted by the 2008 Land Commission were the focus of the second Interim Report which was presented to His Majesty King George Tupou V on 28 May 2010, and appeared in chapter 6 of the 2008 Land Commission’s final report.515 Chapter 6 of the 2008 Land Commission’s Final Report sets out the recommendations and legislative proposals with regard to the 2008 Land Commission’s Second Interim Report.516
Phase Three commenced in April 2009 and continued throughout 2010 until November 2011. Phase Three involved the consideration of various written submissions and one petition to the Legislative Assembly that was copied to the 2008 Land Commission. There were 24 written submissions received by the 2008 Land Commission between April 2009 and November 2011.517 Some of these submissions were from respected scholars in the
513 A copy of this Interim Report is also available on the Commission’s website www.tongaroyallandcommission.com. The same Interim Report is also the chapter 5 of the Commission’s Final report. 514 2008 Royal Land Commission (Tonga), above n 162, pp 137-187. 515 2008 Royal Land Commission (Tonga), above n 162, pp 189-214. 516 The Second Interim Report is also available on the Commission’s website. 517 2008 Royal Land Commission (Tonga), above n 162, p 29. 130 area of Tongan history, whereas others were from special interest groups such as the association of banks, women’s rights advocates and so forth.
During Phase three there were a total of 79 public meetings conducted throughout the island of Tonga and overseas.518 Meetings in Tonga were always held during evenings ‘to allow maximum attendances from villagers.’519 The 2008 Land Commission reported that a total of 3,511 people attended the public meetings and that they were mostly older people with very few younger people attending.520 There were also ten separate meetings with special interest groups that were held, including two public meetings held overseas.521
As previously mentioned, the life of the 2008 Land Commission was extended so as to end on 30 March 2012, but its Final Report was not presented to His Majesty King George Tupou VI until 1 June 2012. The presentation of its Final Report marked the end of the 2008 Land Commission’s hard work, and the life and labours of the 2008 Land Commission then came to an end.
6.5 PUBLIC INVOLVEMENT IN THE 2008 LAND COMMISSION’S WORK It was envisaged from the beginning of the 2008 Land Commission’s work that feedback from the public was vital to provide a holistic approach to any change of the land laws. The 2008 Land Commission’s terms of reference expressly required that there was to be involvement of the public.522
518 Thirty one meetings in Tongatapu, nine in Vava’u, six in Ha’apai, three in ‘Eua, one in Niuafo’ou and one in Niutatoputapu. For overseas meetings there were six in New Zealand, eight in Australia and 13 in the United States of America. 519 2008 Royal Land Commission (Tonga), above n 162, p 23. 520 2008 Royal Land Commission (Tonga), above n 162, p 28. 521 These meetings include the Commercial Banks in Vava’u, Association of Banks of Tonga, the Tonga Chamber of Commerce and Industries, Women’s Groups, Church Leaders, Tonga Law Society, People’s Representatives and hereditary estate holders. The two overseas meetings were the ANZ Bank in Melbourne and Westpac Bank in Sydney. 522 2008 Royal Land Commission (Tonga), above n 162. 131
The 79 public meetings conducted by the 2008 Land Commission provided a ‘forum for open dialogue with Tongans on land issues of concern.’523 The issues and proposals raised in each of these meetings were taken into consideration by the 2008 Land Commission and were acknowledged to ‘form the basis for the recommendations to amend the Land Act and change the land practices to ensure they are in line with the land needs of Tongans.’524 The wide consultations with members of the public enabled the 2008 Land Commission to know more about the issues of the public in general with regard to land, and also about the issues that were particular to individual members of the public. The public meetings also enabled the commissioners and the secretary to give free legal advice about some of the land problems of the public.
6.6 RECOMMENDATIONS OF THE 2008 LAND COMMISSION DIRECTLY REFERRING TO WOMEN’S RIGHTS TO LAND The ‘nine main areas of concern’ and ten ‘other areas of interest’ raised by the public resulted in the 2008 Land Commission making recommendations to change the current land laws, many land practices and also some of the administrative responsibilities. The system of numbering adopted by the 2008 Land Commission in relation to the ‘nine main areas of concern’ was in accordance with the issues most discussed by the public. The first three areas of concern, shown in the list, and the eighth area of concern as listed by the 2008 Land Commission, all relate to women’s rights to land.
The first area of concern is the non-inclusion of adopted and illegitimate children of the landholder in the line of succession. As regards to this area of concern, the 2008 Land Commission reported that the public wanted the law relating to succession to land to change so as to ‘allow adopted and illegitimate sons and daughters of the landholder to be included in the line of succession to an allotment.’525
523 2008 Royal Land Commission (Tonga), above n 162, p 6. 524 2008 Royal Land Commission (Tonga), above n 162, p 6. 525 2008 Royal Land Commission (Tonga), above n 162, p 7. 132
The issue of women’s rights to land was the second of the ‘nine main areas of concern’. The 2008 Land Commission reported that the public wanted: ‘Women’s rights to land and proposals for change including equal rights for women as men under the Land Act including the right to apply for an allotment to register in their names. Some sections of the Land Act, such as section 7, should be amended to allow women to apply for an allotment.’526
The third area of concern related to the proposal to introduce freehold land. The 2008 Land Commission’s report was drafted much later and incorporated the public’s view on the proposed freehold land mentioned earlier. This proposal was put to the public by the 2008 Land Commission to which the public responded that it was agreeable to: ‘Freehold land and the proposal to introduce freehold land only for identified pockets of land such as reclaimed land.’527
The eighth concern raised from the public was to put family land under a Family Trust. The public wanted; ‘Family trust over land and the proposal for new legislation to be put in place to enable families to establish a family trust for lands belonging to that family which would supersede the rights of the heir.’528
The 2008 Land Commission made a total of nine recommendations which promote women’s rights to land in the Act and two recommendations as part of government’s responsibilities that would promote women’s rights to land. The 2008 Land Commission’s report encompassed extensive and detailed issues relating to land which cannot be embraced within the scope of this paper. This paper focuses only on the four chapters of the 2008 Land Commission’s report which relate to women’s rights to land.529 The
526 2008 Royal Land Commission (Tonga), above n 162, p 7. 527 2008 Royal Land Commission (Tonga), above n 162, p 7 528 2008 Royal Land Commission (Tonga), above n 162, p 8. 529 These four chapters are chapter 2 – ‘Voice of the people’, Chapter 3- ‘Land Ownership- Land Tenure, Right to Land and Security’, Chapter 9- ‘Recommendations’ and Chapter 10 – ‘Legislative Amendments’. 133 following sections describe and analyse each of the 11 recommendations previously mentioned, and also quote the recommended legislative amendments where applicable.530
6.6.1 Women as holders of allotments The 2008 Land Commission’s second recommendation, which was also the first one with regards to women’s right to land, recommended: ‘THAT a woman who is a Tongan subject upon attaining the age of 21 years has the right to apply for grant of a town allotment, which can be registered under her name. Upon her death, the land shall devolve according to the succession laws, which shall be amended accordingly. For now women should not be allowed to apply for and gain a registered tax allotment. The status quo should remain with men being allowed to hold tax allotments.’531
The 2008 Land Commission reported that there was pressure from the public for women to be given rights to apply for, and hold, both town and tax allotments, and that this was also supported by the commercial banks.532 Banks believed that preventing women from registering allotments hindered economic development in Tonga since ‘more than half the Tongan work forces were [sic] female’533 and it ‘did not make business sense especially if they [women] were increasingly the main income earners in families.’534 Under the current land laws women can lease land but the current process of securing a lease involves constant and long delays that hinder economic development in Tonga.535 The 2008 Land Commission recognized that women will take chances to recognize and reach their full economic potential if they are allowed to own land.536
530 The Commission drafted three Amendments to the Land Act. These Amendments are known as ‘Land (Amendment) Bill 2012’, ‘Land (Amendment) (No.2) Bill 2012’ and ‘Land (Amendment) (No.3) Bill 2012’. 531 Recommendation No. 2, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 52. 532 2008 Royal Land Commission (Tonga), above n 162, p 49. 533 2008 Royal Land Commission (Tonga), above n 162, p 49. 534 2008 Royal Land Commission (Tonga), above n 162, p 50. 535 2008 Royal Land Commission (Tonga), above n 162, p 50. 536 2008 Royal Land Commission (Tonga), above n 162, p 50. 134
Although the 2008 Land Commission recognized that the public strongly expressed the view that ‘women should be “freed” from the current limitations under the laws, ...’537, the 2008 Land Commission stated that it did not consider it was the right time for women to acquire tax allotments because it believed that Tongan women’s traditional role did not include the kind of heavy and hard labour work associated with tax allotments.538 It believed that there are ‘clear gender roles within the Tongan society that are valued and reflect much of Tonga’s basic cultural values and aspirations’539 and that such gender roles ‘should be protected and maintained for now.’540
The 2008 Land Commission recognized that the well-established gender role in the Tongan society was in conflict with some of the gender equality measures in some of the international policies that Tonga is associated with, but the 2008 Land Commission stated that is still vital to maintain the culture that makes Tonga ‘unique and special within the global context.’541 This culture includes the “fahu” and “mehikitanga” 542 system which are still very much part of the Tongan practices. The 2008 Land Commission firmly stated that women’s rights to land in Tonga should be considered in the context of ‘what is fairer to women, within Tongan society values and not those of other societies.’543 The 2008 Land Commission further considered that women’s right to apply for and hold town allotments should also reflect the modern woman’s increasingly important role as an income earner ... and empower her to provide a home for family.544 Therefore the 2008 Land Commission recommended that women be able to apply for, and hold, town allotments only.
537 2008 Royal Land Commission (Tonga), above n 162, p 34. 538 2008 Royal Land Commission (Tonga), above n 162, p 50. 539 2008 Royal Land Commission (Tonga), above n 162, p 50. 540 2008 Royal Land Commission (Tonga), above n 162, p 51. 541 2008 Royal Land Commission (Tonga), above n 162, p 51. 542 ‘Mehikitanga’ who is also the ‘fahu’ is the father’s sister and ‘is considered to be of higher rank than her brothers, regardless of whether they are older or younger than she.’ 543 2008 Royal Land Commission (Tonga), above n 162, p 51. 544 2008 Royal Land Commission (Tonga), above n 162, p 52. 135
To effect the recommendation under this section, the 2008 Land Commission provided the following draft amendments to the Act of Constitution of Tonga and the Land Act. The Act of Constitution of Tonga was proposed to be amended as follows: ‘Clause 113 amended – Rights to allotments Clause 113 of the Constitution is deleted and replaced with the following – “113 Tongan male subjects by birth of or over the age of 21 years may be granted town allotments and tax allotments out of estates granted in pursuance of this Constitution with the consent of or upon consultation as required by law with the estate holder and out of the lands of the Crown, by the Minister of Lands. Tongan female subjects by birth of or over 21 years may be granted town allotments in the same manner as Tongan male subjects. Such allotments shall be hereditary and shall be of such size and at an annual rent as may be determined by law. A widow shall have the right to succeed according to law, to her deceased husband's tax and town allotments.”’545
The effect of the above proposed amendment provided by the 2008 Land Commission was three fold. One result was to increase the age of the eligibility of landholders from 16 years to 21 years old. The second result was that the consultations to be conducted by the estate holders and the Minister of Lands before making a decision about an application for a grant of an allotment, must be what the law prescribes. The third was the inclusion of women to be eligible to apply for and granted a town allotment.
Further, section 7, 43 and Form 11 of the Land Act were proposed to be amended as follows: ‘Section 7 amended Section 7 of the Land Act is amended by – ... (d) adding the following new subsections (2) and (3) –
545 Act of Constitution of Tonga (Amendment) Bill 2012, ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), Final Report, (2012).
136
“(2) Every female Tongan subject by birth upon attaining the age of 21 years, upon making application in the prescribed form, to the Minister of Crown land or the Hereditary Estate Holder for land in his estate shall be entitled to receive, subject to the provisions of this Act, a grant of land not exceeding 1618.7 square metres in a town as a town allotment. ...” Section 43 amended Section 43 of the Land Act is amended by – (a) adding a new subsection (1A) immediately after the subsection (1) as follows – ‘(1A) Every female Tongan subject by birth of 21 years of age or more not being in possession of a town allotment shall be entitled to a grant of a town allotment.’; ... Form 11 of Schedule IX amended Form 11 of Schedule IX of the Land Act is amended by – (a) inserting the word “female” after the word “male”; and (b) deleting “16” and replacing with “21”.’546
The above three proposed amendments were included by the 2008 Land Commission in the third Land Amendment Bill which, as mentioned earlier, contains amendments to the Land Act 1927 that the 2008 Land Commission considered would receive the least amount of support from the Legislative Assembly and the nobles.547
6.6.2 Daughter’s rights The 2008 Land Commission’s recommendations with regards to daughter’s rights were three in number. First, the 2008 Land Commission recommended the removal of the two
546 Land (Amendment) (No. 3) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in Royal Land Commission, Final Report, (2012). 547 Mrs. Gloria Pole’o, above n 475. 137 restrictions of ‘fornication and adultery’ on daughters’ rights under section 82 (d) of the Land Act.548 The 2008 Land Commission recommended: ‘THAT the termination of an unmarried daughter’s right upon proof of her having committed adultery or fornication is repealed.’549
The 2008 Land Commission and public believed that such restrictions impose ‘unfairness on women because men’s land rights are not subjected to the same requirement’550 and removal of these restrictions will enhance the ‘recommended change to the daughter’s right to succeed in the absence of a male heir.’551
Secondly, with regard to the daughter’s right of inheritance, some people believed that rules to succession should be amended so that a ‘daughter’s rights to succeed as heir to her father’s land (in the absence of a male heir) should not terminate upon her marriage’ 552 as currently provided in the Land Act. Some people also believed that ‘land should be shared amongst all the children of the landholder’553, and others suggested that ‘succession should begin with the eldest child regardless of gender.’554 The 2008 Land Commission’s second recommendation for daughters’ rights is: ‘THAT the restriction on the inheritance of a daughter when she marries should be removed. Where there is no male heir of the deceased landholder, his daughters shall succeed as follows. If there is more than one daughter then the eldest will
548 Land Act [Cap. 132] (Tonga) – provides for the rules of succession to allotments in the event when a landholder dies without a male heir ‘then any unmarried daughter of the deceased holder shall inherit for her life and if there are two or more unmarried daughters they shall inherit all together jointly for their lives. The life estate of any daughter shall terminate on her marriage or upon proof in proceedings against her in the Land Court to recover such allotment (after the manner provided in section 81 that she has committed fornication or adultery);’ 549 Recommendation No. 3, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 53. 550 2008 Royal Land Commission (Tonga), above n 162, p 53. 551 2008 Royal Land Commission (Tonga), above n 162, p 53. 552 Proposals from People No. (i) (b), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 33. 553 Proposals from People No. (i) (b), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 554 Proposals from People No. (i) (b), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 138
inherit the land until she dies then the land will go to her sisters in turn according to age starting from the eldest until they respectively die. When the final daughter dies then the land will devolve to the children of the daughters (sons in order of age, then daughters in order of age, if there are no sons) starting from the eldest daughter and continue under the laws of inheritance.’
The public’s general view in respect of this recommendation is that the removal of all the restrictions will allow a daughter to hold the allotment even if she is married. The 2008 Land Commission believed that whether land is newly acquired555 or family/hereditary land, the landholder together with his family, including his daughters, contribute to the development of such land, and therefore a daughter’s rights should be applied to all lands.556
To effect the above two recommendations with regard to daughters’ rights, the 2008 Land Commission provided the following draft of amendments to section 82 of the Act: ‘Section 82 amended Section 82(2) of the Land Act is amended by – (a) deleting paragraph (d) and replacing with – (d) if the holder dies without leaving any son or male heir of the body of a son surviving, then a daughter of the deceased holder shall inherit for her life and if there are two or more daughters then they shall inherit in turn starting from the eldest daughter. The life interest of a daughter shall terminate upon her death and when the last daughter dies the allotment shall be inherited by the children of each daughter starting with the sons by age of the eldest daughter followed by her daughters then followed by the children of each daughter in similar way from the eldest to the youngest; and
555 ‘Newly acquired land’ is defined in the Commission’s Final Report as ‘a town or tax allotment that has been registered upon a grant and not inherited as an heir’. If the landholder dies, this newly acquired land devolves to an heir and therefore becomes family or hereditary land. 556 2008 Royal Land Commission (Tonga), above n 162, p 53. 139
(b) in paragraph (e), deleting the word “unmarried” before the word “daughter” ...’557
The 2008 Land Commission’s third recommendation about daughter’s rights relates to subdivision of tax allotment by an allotment holder. Some people believed that the current law should be amended ‘to ensure the land stayed with the family when subdivided by the landholder.’558 After gathering views from the public, the 2008 Land Commission said that it was apparent that almost always the subdivided pieces of land from a tax allotment were distributed to people who are not blood related to the landholder ‘in exchange for money, gift or both.’559 This unfair distribution of land is common in Tonga, and the landholder does not offer some of the subdivisions to his close relatives. Consequently the 2008 Land Commission recommended: ‘THAT when a tax allotment is subdivided by the holder, he must offer a plot of land to each of his sons, daughters, brothers and sisters before giving to others.’560
The proposed legislative amendment to legally provide for the above recommendation was as follows: ‘ ... (a) adding a proviso to subsection (1) as follows – “Provided that where a tax allotment is subdivided, the holder shall offer a plot of land to his sons, daughters, brothers and sisters before giving to others.”’561
557 Section 82 amended, Land (Amendment) (No. 3) Bill 2012, ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 558 Proposals from People No. (i) (a), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 33. 559 2008 Royal Land Commission (Tonga), above n 162, p 64. 560 Recommendation No. 22, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 65. 561 Land (Amendment) (No. 3) Bill 2012, ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 140
The first two recommendations in this section related to the removal of the restrictions on daughters’ rights under the current Land Act, whereas the third recommendation related to a change of one of the common land practices currently observed in Tonga.
6.6.3 Widow’s rights The 2008 Land Commission made three significant recommendations with regards to a widow’s rights to land. The first was to remove the restrictions of ‘fornication or adultery’ on widow’s interests on land. The 2008 Land Commission recommended: ‘THAT the termination of a widow’s life interest upon proof of her having committed adultery or fornication is repealed.’562
The public strongly expressed the opinion that women should ‘have equal rights with men under the Land Act’563 and that the restrictions against adultery and fornication should be removed to promote fairness. The justifications for the removal of these restrictions were in line with the earlier analysis on the removal of the same restrictions on unmarried daughter’s rights.564
The 2008 Land Commission provided the following draft legislative amendments to give effect to this recommendation: ‘Section 80 amended Section 80 of the Land Act is amended by deleting the words – “or upon proof in legal proceedings (as provided by section 81) of her having committed fornication or adultery”. Section 81 amended Section 81 of the Land Act is repealed. ... Section 82(2) amended
562 Recommendation No. 5, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 54. 563 Proposals from People No. (ii), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 564 2008 Royal Land Commission (Tonga), above n 162, p 54. 141
Section 82(2)(d) of the Land Act is amended by deleting the words – “or upon proof in proceedings against her in the Land Court to recover such allotment (after the manner provided in section 81 that she has committed fornication or adultery)”.’565
These proposed legislative amendments were placed by the 2008 Land Commission in the first Land (Amendment) Bill 2012, which, as mentioned earlier, is the Bill that the 2008 Land Commission believed would receive the least objection from the Legislative Assembly and nobles.566
The second recommendation made with regard to widows’ rights is for the economic development of the land which a widow inherits and it arises from a proposal from the public and banks that a widow should be allowed to lease or mortgage the land, provided that at the same time the heir’s interest should also be protected.567 To achieve this, the 2008 Land Commission recommended: ‘THAT a widow be allowed to lease or mortgage the land she holds as a widow but only with the consent of the heir.’568
To implement the above recommendation, the 2008 Land Commission provided the following draft legislative amendments to sections 56, 89 and 100 of the Land Act, as follows: ‘Section 56 amended Section 56 of the Land Act is amended by – (a) repealing clause (ii) and replacing it with – “(ii) if the holder is a widow holding the tax or town allotment of her deceased husband then only with the consent of the heir;”
565 Land (Amendment) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 566 Mrs. Gloria Guttenbeil-Pole’o, above n 475. 567 Proposals from People No. (ii), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 568 Recommendation No. 6, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 54. 142
... Section 89 replaced Section 89 of the Land Act is repealed and replaced with – “Consent of Cabinet No lease shall be granted except with the consent of the Cabinet, and consent may be granted to a lease by a widow of the land of her deceased husband with the consent of the heir. ... Section 100 replaced Section 100 of the Land Act is repealed and replaced with – “Conditions of mortgage by allotment holder (1) The registered holder of a tax or town allotment may grant a mortgage over the whole or part of his tax and town allotment provided that – (a) ... (b) the holder is a widow holding the tax or town allotment of her deceased husband and the heir has given his consent; (c) the mortgage is normally for a period not exceeding 30 years but his period may be exceeded by agreement between the mortgagor and the mortgagee with the consent of the heir and the consent of the Minister because of the purpose for which the loan; ...’569
The above proposed legislative amendments were inserted by the 2008 Land Commission in the first Land (Amendment) Bill which the 2008 Land Commission believed would receive the least objection from the Legislative Assembly and nobles once it was tabled.570
569 Land (Amendment) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 570 Mrs. Gloria Guttenbeil-Pole’o, above n 475. 143
The third recommendation the 2008 Land Commission made with regard to the rights of a widow related to newly acquired land. The 2008 Land Commission stated that the public was of strong opinion that ‘a widow should be given more rights with land that was newly acquired by the widow and her deceased husband’571 because it was not family land. For this, the 2008 Land Commission recommended: ‘THAT the rights of a widow to land, that has been newly acquired by her husband should allow her to lease or mortgage the land with the consent of the heir, and where she had no children with her husband, then consent is not required.’572
To effect the above recommendation, the additional draft amendments to sections 2, 56, 89 and 100 of the Land Act were provided as follows: ‘Section 2 amended Section 2 of the Land Act is amended by adding the following new definitions – ... “newly acquired land” means a town or tax allotment that has been registered upon a grant and not inherited as an heir.” ... Section 56 amended Section 56 (ii) of the Land Act is amended by inserting the words “and in the case of newly acquired land the consent of the heir is not required”.’573 Section 89 amended Section 89 of the Land Act is amended by – ... (b) inserting the words “provided that where it is newly acquired land the consent of the heir is not required” after “heir”. ...
571 Proposals from People No. (iv), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 572 Recommendation No. 7, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 208 Royal Land Commission (Tonga), above n 162, p 55. 573 Land (Amendment) (No. 3) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 144
Section 100 amended Section 100(1) of the Land Act is amended by – (a) in paragraph (b), inserting the words “provided that where it is newly acquired land the consent of the heir is not required” after “consent”; and (b) in paragraph (c), inserting the words “provided that where it is newly acquired land the consent of the heir is not required” after “loan”.’574
The above proposed legislative amendments were placed by the 2008 Land Commission in the third Land (Amendment) Bill which the 2008 Land Commission believed, despite strong support from the public, would receive the least support from the Legislative Assembly and nobles.575
6.6.4 Legally adopted children’s rights The 2008 Land Commission reported that members of the public expressed a strong view to ‘include illegitimate and adopted children as heirs, in very particular circumstances.’576 The 2008 Land Commission concluded that if the landholder has no legitimate children and the land concerned is newly acquired land, then ‘there could be good reason for the land to devolve to an adopted child’ especially when such child has ‘lived and looked after the adoptive parents.’577 In such a situation, the landholder and his wife then should consider legal adoption as a serious matter ‘especially in relation to land inheritance.’578 Therefore the 2008 Land Commission recommended:
574 Land (Amendment) (No. 3) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 575 Mrs. Gloria Guttenbeil-Pole’o, above 475. 576 Proposals from People No. (i)(b), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 577 2008 Royal Land Commission (Tonga), above n 162, p 55. 578 2008 Royal Land Commission (Tonga), above n 162, p 55. 145
‘THAT legally adopted children, (sons in order of age, then daughters in order of age, if there is no son) shall succeed as heir to newly acquired land in the absence of any legitimate children of the landholder.’579
The above recommendation was the eighth recommendation by the 2008 Land Commission. The legislative amendment proposed by the 2008 Land Commission was to amend section 82(2) as follows- ‘Section 82 amended Section 82(2) of the Land Act is amended by – ... (c) adding a new proviso immediately after paragraph (g) as follows – “Provided always that if the allotment involved is newly acquired land then in the absence of any legitimate children of the landholder, legally adopted children of the landholder shall succeed beginning with the eldest adopted son and thereafter in accordance with the rules of succession.”‘580
The above proposed legislative amendment was also placed by the 2008 Land Commission in the third Land (Amendment) Bill which the 2008 Land Commission believed would receive least support from the Legislative Assembly and nobles.581
6.6.5 Deserted wife’s rights The Land Act, as presently worded, does not provide an innocent wife with any rights to the land of a husband who has neglected her. The Maintenance of Deserted Wives Act582 provides the Magistrate with the discretion to ‘... order that the possession for the time being of the tax and town allotment of the husband be given to the wife and the produce of tax and town allotment shall be used in support of the wife and the children, if any.’583
579 Recommendation No. 8, ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 56. 580 Land (Amendment) (No. 3) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 581 Mrs. Gloria Guttenbeil-Pole’o, above n 475. 582 [Cap.31] (Tonga). 583 Section 5(1), Maintenance of Deserted Wives Act [Cap. 31] (Tonga). 146
However this possession order may only be made by the Magistrate if the ‘husband refuses or neglects to obey the order or is absent from the Kingdom.’584
One of the proposals from the public in promoting women’s rights to land was for ‘wives to be given residential rights over land of a husband who had committed adultery or neglected marital duties to his wife and children.’585 The 2008 Land Commission accepted this public sentiment and the ninth recommendation of the 2008 Land Commission was: ‘THAT a deserted wife shall have the right to remain on the family land and home with her children until she remarries or dies.’586
This recommendation is a totally new approach to be adopted in the land laws of Tonga and the legislative amendment proposed by the 2008 Land Commission was as follows: ‘Section 88A added The Land Act is amended by adding the following new section immediately after section 88 – “88A Rights of a deserted wife A wife who has been deserted by her husband may, on application to the Court, be granted an order to remain on the town allotment of her husband with her children until she re-marries or dies.”’587
As with the preceding proposed legislative amendment, this propose amendment was also placed by the 2008 Land Commission in the third Land (Amendment) Bill which the 2008 Land Commission predicted would receive the least support from the Legislative Assembly and nobles.588
584 Section 5(1), Maintenance of Deserted Wives Act [Cap. 31] (Tonga). 585 Proposals from People No. (ii), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 34. 586 Recommendation No. 9 ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 56. 587 Land (Amendment) (No. 3) Bill 2012 in ‘Chapter 10 – Legislative Amendments’ in 2008 Royal Land Commission (Tonga), above n 162. 588 Mrs. Gloria Guttenbeil-Pole’o, above n 475. 147
6.6.6 Family Trust The 2008 Land Commission noted that ‘Family Trusts are used in New Zealand and other Pacific countries for the benefit of the family,’589 and in the public meetings the 2008 Land Commission proposed the idea of putting the land held by the father under Family Trusts to allow the family to agree on how the family land would be maintained, managed and divided among the family members instead of it going only to the eldest son as heir.590 The public’s view on this suggestion was recorded by the 2008 Land Commission as follows- ‘(a) new legislation should be enacted to allow a Family Trust to take over the rights of the heir; (b) a family should be given a choice whether to create a Family Trust or just let the heir take his rights as at present; (c) each member of the family should be involved in the decision making process for family land; (d) an independent body should assist families in forming a Family Trust.’591
The 2008 Land Commission recorded that there was a ‘lot of support for allowing the creation of a Family Trust with the option for each family whether to have the land in the Family Trust or leave it to the heir as present.’592
The 2008 Land Commission was conscious that the establishment of Family Trust would remove the right of the heir to succeed and so would require a change to the ‘basic land tenure and is therefore outside [the 2008 Land Commission’s] terms of reference.’593 However, the 2008 Land Commission also felt that such choice should be given by the law to the heir and his family.594 The 2008 Land Commission was also aware that quite a number of legislative changes would be required to implement the Family Trust concept,
589 2008 Royal Land Commission (Tonga), above n 162, p 101. 590 2008 Royal Land Commission (Tonga), above n 162, p 39. 591 Proposals from People No. (viii), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 39. 592 2008 Royal Land Commission (Tonga), above n 162, p 101. 593 2008 Royal Land Commission (Tonga), above n 162, p 101. 594 2008 Royal Land Commission (Tonga), above n 162, p 101. 148 and that such changes would take time to prepare. Therefore the 2008 Land Commission did not prepare any draft legislative amendments, and instead it made the following recommendation: ‘THAT consideration is given to legislate allowing the creation of a Family Trust giving an option to the family to manage, maintain, divide and share the family land and interests therein instead of the current and individual landholders rights and those of the heir.’595
6.6.7 Freehold land The proposal to consider the making available of freehold land was suggested by the late King George Tupou V when he requested the 2008 Land Commission ‘to inquire into the possibility of creating limited freehold titles in Tonga in respect of reclaimed foreshore land from the sea.’596 After consultation with the Ministry of Lands, the 2008 Land Commission served a written advice to His Late Majesty on 3 May 2010.597 The advice was prepared before gathering views from the public on the issue, and so the views of the public were not taken into account in this advice.598 The essence of the 2008 Land Commission’s advice to His Late Majesty King George Tupou V was that instructions be given to: ‘ ... draft and promulgate legislation to be tabled in the current session of the Legislative Assembly giving the status of the freehold land to all land that has been or are to be reclaimed from the sea or lagoon area (subject to option for a private owner to convert to freehold at a cost payable to the Government or remain a leasehold relating to land reclaimed prior to the coming into force of the legislation) and the owner of such freehold shall be the private person in relation to land reclaimed before the legislation is in effect or the Government until the
595 Recommendation No. 44 ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 102. 596 2008 Royal Land Commission (Tonga), above n 162, p 97. 597 2008 Royal Land Commission (Tonga), above n 162, p 97. 598 The first public meeting was on 10 June 2010 held at the Basilica Hall, Kolofo’ou as shown in Appendix 8, 2008 Royal Land Commission of Tonga, Final Report (2012) Vol. 1 Part 1. 149
relevant City Councils have been established when ownership shall be transferred to that City Council.’599
When the freehold proposal was raised by the 2008 Land Commission in the public meetings, the 2008 Land Commission recorded that six main views were expressed on this matter: ‘(a) sale of freehold land should be introduced to Tonga; (b) freehold would only benefit the wealthy; (c) freehold would encourage reclamation which would adversely affect the foreshore environment, customary fishing rights and the rights of people living in coastal areas; (d) reclamation would create more land for the people; (e) rights to freehold land should be reserved only for Tongan subjects living in adjoining areas; (f) reclamation should be limited only to lagoon areas (internal waters).’600
Some of the views of the general public seemed to support freehold in that: ‘- it would make more land available for distribution; - it should be reserved for Tongans and those within the immediate vicinity to the reclamation; - the reclamation of the such new lands should be limited only to lagoon areas.’601
On the other hand, the views of other members of the public did not favour the proposal for freehold land: ‘ - it will eventually lead to the sale of hereditary or family land;
599 Letter from the Commission to His Late Majesty dated 3 May 2010 with regards to “Freehold Land” shown in Appendix 15, 2008 Royal Land Commission of Tonga, Final Report, (2012), Vol. 3 Part 1. 600 Proposals from people No. (iii), Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 35. 601 2008 Royal Land Commission (Tonga), above n 162, p 99. 150
- it will benefit only the wealthy who will have enough money to buy freehold land; - reclamation will impact the environment and sea organisms; - it will impact on the rights of the people living next to the foreshores.’602
The limiting of freehold ownership to only a handful of people, such as wealthy people and/or residents living adjoining to reclaimed land, may create even more land problems than there are at present. Most of the current residents of the reclaimed lands in Tonga are wealthy people and they may not want to be uprooted if adjoining residents are to be given the opportunity to own the reclaimed lands. Some members of the public also suggested the limitation that reclamation for the purpose of creating land should be effected only from the internal waters, and not from the open ocean. The most important disadvantage of the freehold proposal that was rightly pointed out by the public was its adverse effect on the ‘foreshore environment, customary fishing rights and the rights of people living in coastal areas.’603 Most of Tonga’s population relies heavily on sea food from the coastal areas for food and for money. Additionally the well-known issue of the effect of climate change on low-lying islands, such as the islands of Tonga, is a major concern today. At the end of its consideration, the 2008 Land Commission recommended: ‘THAT Government, after a consultation process, is given the right to identify limited coastal areas, including the lagoon area, that it may reclaim or allow to be reclaimed and hold as freehold land to be used for the benefit of the country. Such freehold land may be sold.’604
Despite considering this issue in length, the 2008 Land Commission did not draft any proposed legislative change in any of the Bills that it prepared.
602 2008 Royal Land Commission (Tonga), above n 162, p 98. 603 Proposals from people No. (iii)(c), Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 35. 604 Recommendation No. 42 ‘Chapter 3: Land Ownership – Land Tenure, Rights to Land and Security’ in 2008 Royal Land Commission (Tonga), above n 162, p 56. 151
6.6.8 Legitimated children The 2008 Land Commission did not make any recommendation in relation to legitimated children, despite reporting that there were members of the public who asked it ‘to determine the rights of a son born before his parents marry.’605 The 2008 Land Commission clarified the rights of legitimated children under the laws of Tonga and pronounced that although under the law of succession ‘only persons born in wedlock may inherit,’606 so that only children born after a couple is married will be entitled to inherit their father’s allotments or estates, on the other hand, the Legitimacy Act607 provides that children born before their parents’ marriage becomes legitimised from the date of the parents’ marriage, provided that each parent ‘was not married to a third person when the illegitimate person was born.’608 Section 4 therefore gives a legitimated son the right of succession to his father’s allotment in priority to another child born after the marriage.609 The Court of Appeal confirmed this situation in the case of Maliepo v Faka’osilea & Minister of Lands when it held that under the Legitimacy Act610 ‘the date of legitimation is the date of the marriage ... and [a]ccordingly the appellant’s rights to claim to be the rightful heir were controlled by section 4 of the Legitimacy Act and he was entitled to succeed.’611
6.7 CONCLUSION In summary, the 2008 Land Commission made a total of nine significant recommendations to change the current land laws, and two important recommendations to change the land practices, with regards to women’s rights to land. The first was to permit Tongan female subjects by birth to apply for and register town allotment. Second was to remove the restrictions on daughters’ rights when a landholder has no son, whilst the third was to enable the daughter or daughters to succeed and have a life interest to their
605 Proposals from People No. (i), ‘Chapter 2: Voice of the People’ in 2008 Royal Land Commission (Tonga), above n 162, p 33. 606 Section 82(a), above n 3. 607 [Cap. 32] (Tonga). 608 Section 3(a) and (b), Legitimacy Act [Cap. 32] (Tonga). 609 Legitimacy Act [Cap. 32] (Tonga). 610 Above n 609. 611 Maliepo v Faka’osilea & Minister of Lands [1995] Tonga LR, p 53. 152 father’s allotment. The fourth recommendation relates to the removal of two restrictions on the widow’s rights to land, and the fifth recommendation was to allow a widow to lease or mortgage an allotment provided the heir consents, while the sixth recommendation, in the case of newly acquired land, that the legal requirement of consent from heir to be removed when the landholder and widow had no children. The seventh recommendation was to include adopted children in the line of succession to allotments. The eighth recommendation was to give a deserted wife and her children residential right on the land of the deserting husband. The last recommendation was discussed in relation to daughter’s rights, and recommended giving the landholder’s family members, including brothers and sisters, a piece of land when a tax allotment is subdivided. The additional two recommendations relate to land practice and allow for land to be put under a Family Trust, and for government to allow appropriate areas of reclaimed lands to be converted to freehold which would be available to both men and women alike.
The nine recommendation to improve the rights of women to land in Tonga in the 2008 Land Commission’s Final Report, if incorporated into the Act of Constitution of Tonga and Land Act, will guarantee Tongan women with more rights to land. Tonga has pledged commitments to international, regional and national instruments to enhance gender equality as shown in Chapter 3, but is very hesitant to act on these commitments and amend the relevant laws accordingly.
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CHAPTER 7: POPULAR VIEW ON WOMEN’S RIGHTS TO LAND
INTRODUCTION The concerns of Tongans over land related practices, problems, aspirations and policies were expressed at the 79 public meetings conducted by the 2008 Land Commission both in Tonga and overseas. To complement the expressions of the public at these meetings, it was felt that it would be interesting and useful for the purposes of this thesis if a short survey was conducted to try to capture the reaction of the public of Tonga towards those recommendations contained in the Final Report of the 2008 Land Commission in its Final Report which related to women’s rights to land. Although there were nine recommendations made by the 2008 Land Commission which directly related to women’s rights to land, two of them related to permitting a widow to lease land. Therefore these two recommendations were incorporated into one question making a total of eight issues altogether. In other words there were only eight main issues relating to women’s rights to land in the 2008 Land Commission’s Final Report with nine recommendations relating to those issues. These issues are summarised as follows:
1. The entitlement of Tongan women of 21 years and above to a town allotment;612 2. The limitations of fornication and adultery upon unmarried daughters’ interest in their father’s land under section 82 (d) of the Land Act;613 3. Succession of daughters to a father’s land in the absence of a son born in wedlock, and succession of a daughter’s children to the same land;614 4. The limitations of fornication and adultery upon widows’ interest in deceased husband’s land under section 80 of the Land Act;615 5. The entitlement of a widow to lease or mortgage her deceased husband’s land with the consent of the heir;616
612 Recommendation No. 2, 2008 Royal Land Commission (Tonga), above n 162, p 52. 613 Recommendation No. 3, 2008 Royal Land Commission (Tonga), above n 162, p 53. 614 Recommendation No. 4, 2008 Royal Land Commission (Tonga), above n 162, p 53. 615 Recommendation No. 5, 2008 Royal Land Commission (Tonga), above n 162, p 54. 616 Recommendations No. 6 and 7, 2008 Royal Land Commission (Tonga), above n 162, pp 54 -55. 154
6. The right of deserted wives to live on and use their husbands’ lands when deserted by them;617 7. The entitlement of legally adopted children to their adoptive father’s land provided the father has no children born in wedlock;618 8. The obligation of a landholder to offer plots of land to brothers, sisters and children when subdividing a tax allotment.
The first section of this Chapter briefly outlines the purpose of the survey that was conducted. The second section is a brief description of the challenges encountered during the survey. The third section records and analyses the data from the 200 participants of the commoners in relation to the recommendations made by the Commission. The fourth section is the record and analysis of the data from the six estate holders who agreed to participate in the survey. The last section of this Chapter presents the conclusion.
7.1 PURPOSE OF THE SURVEY The main purpose of this survey was to ascertain and analyse the opinion of the Tongan people generally with regard to the 2008 Land Commission’s recommendations relating to women’s rights to land. These recommendations were the central part of the survey. However in order to achieve this main purpose the participants were also asked for their views on the distinct traditional role of Tongan women in the “fahu system”. The justification for this additional enquiry of participants was because one of the strong arguments against improving women’s rights to land in Tonga is that the Tongan women’s ranking in the family and society is “higher” than Tongan men because of the “fahu system”. This argument is one of the main deterrent factors to the improvement of women’s rights to land.
7.2 CHALLENGES IN CONDUCTING THE SURVEY Before and during the survey the following challenges were encountered.
617 Recommendation No. 9, 2008 Royal Land Commission (Tonga), above n 162, p 56. 618 Recommendation No. 22, 2008 Royal Land Commission (Tonga), above n 162, p 65. 155
Firstly, it was only physically possible to extend the sample to some 200 commoners, plus six estate holders, and a sample of this size obviously does not accurately represent the whole population of Tonga. The total population of Tonga by August 2011 was 103,036 and the sample of 206 represents only .002% of this population. This percentage is very insignificant having regard to the total population and therefore the result of this survey may not accurately represent the view of the general population. However, the survey was the first, and only survey, to be conducted to discover the views of the public about the recommendations made in the 2008 Land Commission’s Final Report about women’s rights to land, and therefore would be the only indication of the views of the Tongan people on these issues.
Secondly, at the beginning of the survey, it was quite apparent that most of the participants did not either know about or understand some of the current laws that relate to the recommendations made by the Commission. Therefore the researcher had to spend extra time with each participant explaining the current law. The issue of a daughter succeeding to a landholder’s land in the absence of a son, which is discussed on page 155 of the Final Report proved to be one of the most complicated out of all the recommendations to explain in the survey. Therefore this recommendation had to be verbally explained at length on almost every occasion in order for the survey participants to understand the meaning and implications of the recommendation. In a few cases, the participants did not understand this recommendation at all.
Thirdly, the unavailability of some of the estate holders delayed the drafting of the survey. The researcher became aware that some of the estate holders were quite busy people and making appointments with secretaries or personal assistants proved to be more difficult and time consuming than was originally anticipated.
Fourthly, was the unavailability of tape cassettes from shops for the recording of interviews. Early in the survey, the cassettes were no longer available from the shops in Tonga and the interviews during this time were hand recorded only. It was not until much later that cassettes were available, and recording became possible again. 156
Fifth, was the difficulty of hand recording some interviewees’ responses. In some cases, the interviewee spoke either at a fast pace or in an inaudible manner. In some cases the researcher was able to record the words of some interviewees only after asking the interviewees to repeat themselves several times.
Sixth, four of the six estate holders who were interviewed preferred the researcher to verbally recite to them the questions in the survey, and they responded orally. The main challenge encountered as regards to the estate holders was that they spoke in general about their views in relation to women’s rights to land in Tonga. During these interviews it was disrespectful to stop these estate holders and ask them one question at a time. Therefore the outcome from the survey of these four estate holders, in some aspects, may seem vague, whereas the viewpoints of the two estate holders who had written their answers, were clear.
Seventh, is the inability to obtain conclusive data from the Ministry of Land, Survey, Natural Resources and Environment. A letter was delivered to the Legal Administrator of the Ministry of Lands on 3 July 2012 requesting her good office to provide the researcher with the data specified in the letter. It was not until January 2013 that some data was provided, and even then the researcher was told that such data was not conclusive and far from being accurate. As a result most of the data provided by the Ministry was not helpful to this research due to its inaccuracy and incompleteness and so such data could not be included in this paper.
Last, was the delay in the releasing of the scholarship grant. The grant was not received until January 2013. This delay was stressful because of time limitations on the write up of two of the chapters of this paper.
7.3 RESULTS AND ANALYSIS OF THE SURVEY – COMMONERS This section focuses on recording and analysing the data from commoners on the eight issues that were the subject of the nine recommendations of the Commission. It contains 157 eight tables of data, one table for each issue. The results and analysis of the six estate holders’ survey is discussed in the next section.
(i) Tongan women’s entitlement to town allotment The laws of Tonga do not give Tongan women the right to be granted and register town allotments. Women are allowed to lease land but not to register it. The right of women to apply for, and register, town allotments was the first recommendation relating to women’s right to land made by the Commission. It was also the subject of the first question in the questionnaire for the public survey. The question was asked, “Whether a woman who is a Tongan subject, upon attaining the age of 21 years should have the right to apply for grant of town allotment?” Table 3 below shows the exact number of responses and the percentage of each response to this question from the commoners. The percentage for each gender and the total percentage of both genders’ responses are also shown.
Table 3: Should women of 21 years and above have the right to apply and register a town allotment? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 63 13 78 67 14 79 Total % Agree 79 Disagree 17 3 20 16 2 18 % Disagree 19 Not sure 2 - 2 2 1 3 % not sure 2 No answer ------% no answer - Total 98 100 102 100
A total of 79 percent of the 200 commoners who were interviewed agreed that Tongan women should be given the right under law to apply for and be granted a town allotment. The percentage of males who agreed with this particular recommendation was one percent more than the percentage of females.619 Reasons such as ‘today women are as capable as
619 Total male percent was 79 whereas total female percent was 78. 158 men’ and ‘fair distribution of land to both female and male’ were repeated from participants who agreed that Tongan women should be granted town allotments.
On the other hand 19 percent of the commoners did not agree that Tongan women should have the right to apply and be granted a town allotment. Reasons for this disagreement included ‘the current law is still satisfactory’ and ‘in the Tongan tradition and cultures, the roles of men and women are well established; men are blessed with the land while women have the high ranking of the “fahu system” and these two differentiating roles balanced the importance of the two genders in the Tongan society.’620
Further the two percent who were not sure, stated that ‘there will be more problems’ if women are granted rights to a town allotment. These problems included where Tongan women marry a foreigner, the land is bound to be misplaced, since the register of the land will be transferred to the husband. This perception from the commoners is misconceived because under laws of Tonga, no foreigner is permitted to apply for or be allowed to register allotments.621 What is apparent from the reasons given by this two percent is that there is a lack of understanding of the land tenure system of Tonga especially when the law does not allow foreigners to be granted and to register land in Tonga.
Clearly, Table 3 shows that the majority of the participants supported the recommendation of the Commission for Tongan women to be granted and to be able to register town allotments. Gender, age and locality were not factors that affected the participants’ responses.
620 Interview with Mrs. Vika Matekitonga, High School Teacher for Tongan Studies Subject, ‘Api Fo’ou College (Nuku’alofa, 5 November 2012). 621 Section 14, above n 3. 159
(ii) Repeal limitations of adultery and fornication on unmarried daughters’ interests Section 82 (d) of the current Land Act622 allows unmarried daughters to have legal interests in their fathers’ land. But these interests are limited if marry or if there has been proof in a court of law of adultery or fornication. The Commission recommended the removal of these limitations. The question asked in the questionnaire was: “The Commission recommended that the restrictions of a daughter’s right upon proof of commission of fornication or adultery be removed. Do you think that these restrictions should be removed?” Table 4 below conveys the answers from the commoners to this question.
Table 4: Should the legal limitations of adultery and fornication on unmarried daughters’ interest on land, be repealed? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 64 13 79 61 12 72 Total % Agree 75 Disagree 15 3 18 22 4 25 % Disagree 22 Not sure 3 - 3 2 1 3 % not sure 3 No answer ------% no answer - Total 98 100 102 100
75 percent of the participants agreed with the recommendation of the Commission to repeal the limitations of adultery and fornication on an unmarried daughter’s right to her father’s land. Of this 75 percent, 79 percent were female, whereas 72 percent were male. Most participants who agreed were of the view that leaving the land to the daughters is the “fairest” thing to do. They continued to say that parents would not want anyone else other than their own children, regardless of gender and personal issues about such children, to reside on the land and in the houses that their parents built. Others who also agreed to repeal these limitations had the view that not only is it unfair for women to have limited rights to land; what is more unfair is the imposition of limitations on women’s
622 Above, n 3. 160 rights when there are no similar limitations on men’s rights. Most of these participants firmly admitted that these limitations may have been fair in the past but at this day and age these limitations are unjustifiable. Women today are more economically, physically, emotionally and mentally involved in every aspect of life, and therefore their rights to land should not be disqualified because of personal matters, such as adultery and fornication. Some people who supported this recommendation considered these limitations as “archaic”.
22 percent of the interviewees wanted to maintain the status quo in the law in relation to the limitations of fornication and adultery on unmarried daughter’s interest. Of this 22 percent, 25 percent were male participants, and 18 percent were female. The seven percent difference in the opinions of the gender may suggest that women are more empathetic against these limitations, than men. The most repeated reasons of men were that women will marry and the land will be misplaced to their husbands and their respective families. Most of these men also said that every land has a family name attached to it and such land should be the inheritance of such family name and none other.
Most of the three percent who were not sure were not able to make up their mind and therefore did not elaborate on their answer. Only one person was able to give an answer, stating that the matter should depend on the circumstances of the case. ‘On the face of it, there should be no restrictions on a daughter’s rights to land but then this could in turn cause other problems.’
The data in Table 4 shows that majority of the participants support the recommendation to repeal the limitations of fornication and adultery on an unmarried daughter’s interest. Again, as with the previous recommendation, the participants’ responses were not affected by age and locality.
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(iii) Succession of daughters to landholder’s land in the absence of son Section 82 of the current Land Act623provides the succession rule for allotments. In particular section 82(d) provides for the land to devolve to the unmarried daughters in the absence of a son. The unmarried daughter’s interest terminates on certain grounds as previously mentioned. However, the 2008 Land Commission recommended that where the landholder has no son and only daughters, that daughters should take turn in succession to the land, starting from the eldest and when all daughters die, their children should take turn in succeeding to the land starting from sons of the eldest daughter and so on. Table 5 is the outcome of the commoners’ response to this recommendation.
Table 5: Should daughters born in wedlock succeed to land in the absence of a son born in wedlock? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 37 2 40 33 4 36 Total % Agree 38 Disagree 40 13 54 48 12 59 % Disagree 57 Not sure 5 1 6 4 1 5 % not sure 5 No answer ------% no answer - Total 98 100 102 100
The recommendation for a daughter to succeed to her father’s land in the absence of a son gained support from 38 percent of all participants. This recommendation was complicated and it is necessary for further explanation to be given at this stage. The 2008 Land Commission recommended that in cases where there is one daughter, the land should devolve to her and to her sons in the order of their age, starting from the eldest, then to daughters of the daughter in order of their age. The second part of this recommendation was that if there is more than one daughter, then the land devolves first to the eldest daughter until she dies before the next daughter succeeds and so on until all daughters die.
623 Above n 3. 162
The land will then devolve to the sons of the eldest daughter in the order of their age, starting from the eldest, then to the daughters of the eldest daughter, in the order of their age and shall continue in a similar way to the children of the daughters.
A majority of participants, 57 percent, disagreed with the recommendation for daughters to succeed to land in the absence of a son. This disagreement does not necessarily imply that this 57 percent disagreed with daughters succeeding to land, because about 80 percent of this 57 percent suggested alternatives as to how the land in such a situation should devolve. These alternatives included the following: (a) In the case of more than one daughter, that the devolution of land be similar to the current succession rule of the allotment under section 82 of the Land Act624. That is, for the eldest daughter to succeed to the land, then to one of her sons, and if she has no sons, then to her daughters; or (b) That the daughters succeed to the land, in turn of their age, starting from the eldest. After the last daughter passed away, the land shall return to the father’s brother; or (c) In cases where there is more than one daughter, to let the daughters decide who is to succeed to their father’s land; or (d) If the land can be divided amongst the daughters, in cases where there is more than one daughter, the land should be divided and registered by each of them.
Alternative (a) was the most frequently repeated alternative from the participants who disagreed with the recommendation. About 60 percent of these participants agreed that the eldest daughter should succeed to the land and succession should operate through her descendants.
The five percent who were not sure were not able to state what their view was, on this particular recommendation. Some of this five percent seemed not able to understand the recommendation and therefore were not able to elaborate more on the matter.
624 Above n 3. 163
As clearly shown in the data, this particular recommendation was not favoured by the commoners. Most of the participants said that it was too complicated and it may cause more problems between family members. The commoners also suggested other alternatives that are less complicated and may not cause as many problems.
(iv) Repeal the limitations of adultery and fornication on widow’s interest Section 80 of the current Land Act625 limits the interest of a widow to her deceased husband’s land. The widow is entitled to her deceased husband’s land until she remarries, dies or commits fornication or adultery. Fornication and adultery must be proved in a court of law. One of the recommendations of the Commission was to remove the termination of a widow’s life interest to her deceased husband’s land upon proof of her having committed adultery or fornication. This question was put to the commoners, and Table 6 below is the record of the outcome.
Table 6: Should the legal limitations of adultery and fornication on widow’s interest in land be repealed? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 36 2 39 38 9 46 Total % Agree 43 Disagree 42 14 57 46 8 53 % Disagree 55 Not sure 4 - 4 1 - 1 % not sure 2 No answer ------% no answer - Total 98 100 102 100
This recommendation was supported by 43 percent of the commoner participants. 46 percent of male participants supported this recommendation in contrast to the 39 percent support from the female gender. Most of the supporters of this recommendation gave the opinion that fornication and adultery are personal and private matters of the widow and
625 Above n 3. 164 therefore should not affect the widow’s interest in a land that she contributed in developing. The few other participants who supported this recommendation stated that if the husband has passed away the widow’s interest should not be limited because of her private affairs.
On the other hand, 55 percent of the interviewees did not agree with this recommendation; of this percentage of interviewees who dissented from this recommendation, 57 percent were female participants and 53 percent were male participants. The four percent difference presumably shows how strongly women feel about fornication and adultery in the Tongan society. Most of the participants who disagreed were concerned with two main issues. First, that if the law allows the repealing of these two limitations, it may therefore imply that Tongan society condones these “repulsive” behaviours, which are repugnant to a religious country, such as Tonga. Second, that a widow has claim to such land only because she was married to the landholder. Some of the disagreeing participants strongly believe that once a widow enters into a sexual relationship with another man, such widow is making a statement - that she is forfeiting her widow’s rights to her deceased husband’s land no matter how involved such widow was in developing such land.
The remaining two percent of participants were not sure of whether to support the recommendation or not. The same participants were not able to give a reason for their view.
So this recommendation was not supported by the commoners. Although the 55 percent who disagreed with the recommendation to repeal the limitations of fornication and adultery on a widow’s right may seem marginal, the reasons they gave were quite significant. Again age and locality were not factors that affected the responses of the participants to this recommendation.
(v) Permitting widow to lease or mortgage land with consent of heir Under section 56(ii) of the Land Act, a widow is not permitted to lease the town or tax allotment of her deceased husband, and section 100(1)(i) disqualifies a widow from 165 mortgaging the town or tax allotment of her deceased husband. In fact the widow is not allowed to execute any dealings relating to the deceased husband’s land that may allow financial gain for her or her children. These dealings include leasing out or mortgage the land. The 2008 Land Commission’s recommendation with regard to widows in this situation was two-fold: first, that a widow should be given the right to lease or mortgage inherited land of her deceased husband, provided the heir consents; and, second, with regard to newly acquired land, that a widow must obtain the consent of the heir to lease or mortgage such land, but if there is no heir then a widow should be able to lease or mortgage the land. “Newly acquired land” was defined by the 2008 Land Commission as ‘a registered town or tax allotment that has been registered to a landholder upon a grant, which has not been transferred to him through any rights as an heir.’626 The question asked in the questionnaire did not specify whether the land was inherited or newly acquired. The question in this regard was general: “Should the widow be permitted by law to lease or mortgage her deceased husband’s land.” Table 7 below shows the result to this question.
Table 7: Should a widow be permitted by law to lease or mortgage her deceased husband’s land? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 63 16 81 70 16 84 Total % Agree 83 Disagree 17 - 17 14 1 15 % Disagree 16 Not sure 2 - 2 1 - 1 % not sure 1 No answer ------% no answer - Total 98 100 102 100
This recommendation gained a high support of 83 percent from the participants: 84 percent of male participants, and 81 percent of women supported this recommendation. Almost all the participants who agreed with this recommendation were of the opinion that a widow should be permitted to lease or mortgage land for financial gain to her and her
626 2008 Land Commission (Tonga), above n 162, p 52. 166 family. This support was regardless of whether the land was inherited or newly acquired. Further, about 98 percent believed that the consent of the heir must be mandatory before lease or mortgage to the widow is granted regardless of it being an inherited land or newly acquired land.
A minority of 16 percent of the interviewees did not agree with the recommendation. Most of these participants were of the opinion that the status quo must still be maintained. Most of the disagreeing participants were of the opinion that widows should only hold land for the interest of the heir. Further, some of the disagreeing participants believed that some widows may cause more problems by leasing or mortgaging the land. This concern is mainly targeted at situations where there is a widow from a second marriage and an heir from a first marriage. Some strongly believed that where a widow from a second marriage wants to lease or mortgage the land and the heir is from the first marriage, they are almost always not in good relationship. In such a situation, it may cause disagreements and discord between the widow and the heir.
The remaining one percent of interviewees were not sure, but no reason was offered.
This recommendation gained significantly high support from both genders. As with the previous four recommendations, age and locality did not affect the responses of the participants to this recommendation.
(vi) Rights of deserted wives In the laws of Tonga, a deserted wife has no right to land even if she has children with her when her husband deserts her, that is leaves her without intending to return.627 In such a case, the wife, despite having committed no wrong, is expected by the husband’s family or society, to move back to her parents’ home. The 2008 Land Commission recommended that when a wife is deserted by a husband and the wife has done no wrong, then such wife should be allowed by the law to continue residing on her husband’s land and utilise her
627 A Delbridge et al, Macquarie Dictionary (3rd ed, 1997). 167 husband’s tax allotment to provide for her and her children, until she either remarries or dies. Table 8 below shows the data for this recommendation.
Table 8: Should a deserted wife have the right to live and utilise her husband’s land? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 81 16 99 83 17 98 Total % Agree 99 Disagree 1 - 1 1 - 1 % Disagree 1 Not sure - - - 1 - 1 % not sure - No answer ------% no answer - Total 98 100 102 100
This recommendation gained the highest percentage of support. It gained 99 percent support from the participants. Although this recommendation is a new notion in the current policy and laws of Tonga, the participants had no difficulty in understanding the rationale behind it. From the views of the participants, the issue of deserted wives being neglected by current laws is regarded as one of the crucial issues that needs urgent attention. This recommendation gained 100 percent support from the participants in the Vava’u Islands and 98 percent from Tongatapu. The reason that was most often repeated by almost all the participants who supported this recommendation was that the deserted wife did not breach her marriage vows; the husband is at fault and therefore he should be “punished” for that. The punishment referred to by these participants is for the husband to be “stripped” of his rights to his land, because he neglected his duties as a husband and father, if there are children involved. Further, some stated that the current law is “selfish” in the sense that despite the husband committing moral wrong, his right to land is still very much intact.
The one percent of participants who did not support this recommendation did not fully object to the recommendation rather, they preferred that the right of the deserted wife to
168 be a policy, rather than a law. In fact, the one percent disagreement was not on the content of the recommendation, rather they agreed with the concept, but they suggested an alternative to law.
So in effect this recommendation gained 100 percent support of the commoners. The view of the one percent who did not express agreement with the recommendation was not entirely a disagreement – it supported the notion behind the recommendation, but instead of enforcing it as a law, considered that a policy was more appropriate. In total, age and locality, did not affect the responses of the participants to this recommendation.
(vii) Rights of adopted children in the absence of children born in wedlock Children who are born out of wedlock have no right to any property under the laws of Tonga. The same can be said with regard to the rights of such children to their father’s land – there is no right at all. Under the law of Tonga, an adoption order can only be granted in respect of a child born out of wedlock.628 This is in contrast to a guardianship order which can only be granted upon children born in wedlock.629 Adoption orders change the status and parents of children, whereas guardianship orders do not. Legally, upon the making of an adoption order, the child becomes the child of the adoptive parents in every sense.630 The child is no longer the child of his or her natural parents. The 2008 Land Commission recommended that illegitimate children or children born out of wedlock who have been legally adopted should be given the right to succeed to their adoptive father’s land if the adopted parents have no children born in wedlock. Table 9 shows the commoners’ view on this recommendation.
628 Section 15(1), Maintenance of Illegitimate Children Act [Cap. 30] (Tonga). 629 Legal Guardianship Act 2004 (Tonga). 630 Section 18, Maintenance of Illegitimate Children Act [Cap. 30] (Tonga). 169
Table 9: Should legally adopted children be entitled to adoptive father’s land in the absence of children born in wedlock? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 52 12 65 48 10 57 Total % Agree 61 Disagree 29 4 34 32 7 38 % Disagree 36 Not sure 1 - 1 5 - 5 % not sure 3 No answer ------% no answer - Total 98 100 102 100
61 percent of interviewees supported this recommendation. The question asked whether children born out of wedlock who are adopted should be entitled to their adoptive father’s land when the father has no children born in wedlock. There was a split view on this recommendation. About 50 percent agreed that only sons born out of wedlock should succeed whereas the other 50 percent agreed that regardless of gender, a child born out of wedlock should succeed to his or her adoptive father’s land in the absence of children born in wedlock. Almost all of the 61 percent considered it fair and just for children born out of wedlock who are adopted to succeed to their adoptive father’s land in the absence of children born in wedlock, because the landholder has no ‘blood descent’ other than the children born out of wedlock.
The contrary view was supported by 36 percent of the participants. Most of this category strongly supported the maintaining of the status quo on this aspect of law, stating that a child born out of wedlock has no right under the current law of Tonga and this should be maintained. These participants were of the view that a father should have no obligation to find land for his children who are born out of wedlock and his land should be inherited as currently prescribed by the law.
The three percent who were not sure about this recommendation were mostly male. Most of these were of the opinion that succession of children born out of wedlock may be
170 acceptable if the landholder’s wife consents. Most of the participants, who were not sure, seemed to be strongly concerned about the position of the landholder’s wife in such a situation.
As apparent from the data, support for this recommendation was not strong. Again age and locality were not factors that affected the views and opinion of the participants.
(viii) An allotment holder should be required to offer a plot of land to brothers, sisters and children of landholder when sub-dividing A holder of an allotment has the right to do as he wishes with the land he holds, and this applies when the landholder subdivides his tax allotment into plots of land. In such case the landholder can do as he pleases regardless of whether he has children or other siblings. The Commission recommended that when a holder of a tax allotment sub-divides his tax allotment, the law should direct the landholder to offer plots of land to his brothers, sisters and children, before such landholder does as he wishes with the rest of the plots. This recommendation was put to the commoners in the questionnaire and Table 10 shows the data.
Table 10: Should a landholder offer a plot of land to his brothers, sisters and children when sub-dividing? Gender F M Islands Tongatapu Vava’u Female Tongatapu Vava’u Male % % Agree 63 16 81 70 16 84 Total % Agree 83 Disagree 17 - 17 14 1 15 % Disagree 16 Not sure 2 - 2 1 - 1 % not sure 1 No answer ------% no answer - Total 98 100 102 100
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There was a strong support for this recommendation amounting to 83 percent of the participants. Of this 83 percent, 84 percent of male participants and 81 percent of female participants, agreed with this recommendation. The 83 percent who agreed are from both urban and rural areas, male and female and from various age groups. The reason that was most often repeated was that distribution of a sub-division to brothers, sisters and children of the landholder is the fairest outcome because although the land is registered and held by the landholder, it is still regarded as family land. Further, some of the agreeing participants stated that disappointment often arises in such situation when the landholder first offers plots of land to friends and other people who have no blood ties to the land. What is very disappointing is when a landholder who has lived overseas all his life and has no interest in the land subdivides the land and ‘sells’ the plots for his own financial gain without considering uncles, aunts and other siblings.
16 percent of participants disagreed with this recommendation. Of this 16 percent, males comprised 15 percent, whereas females constituted 17 percent. There was one reason that was most often repeated as justification for disagreeing with this recommendation, i.e. that the current law gives the right to the land to the heir, and he should be respected for what he does with the land, even if he gives or ‘sells’ the land to people other than family members. Some of these participants stated that being the eldest child in a family is not achieved by choice, it is in accordance with God’s will, therefore the heir should be respected for whatever decision he makes with regard to the land.
The remaining one percent of the interviewees were not sure, but their views seemed to support the current land laws. The factors of age and locality did not cause significant difference in the participants’ responses.
7.4 RESULT AND ANALYSIS OF THE SURVEY – ESTATE HOLDERS The same questions that the commoners answered were also posed to the six estate holders who agreed to participate in the survey.
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Table 11 is divided into two parts (Part 1 and Part 2) and it contains the total statistics for the responses from all six estate holders. The names of these estate holders are kept anonymous and will not be referred to specifically in this paper in order to maintain confidentiality.
The estate holders’ views assisted very much in gaining an in-depth insight on the land tenure system of Tonga. Estate holders are said to be “stewards” or “keepers” of most land in Tonga. They play a significant role in deciding who is suitable to register as the holder of an allotment of land on their estates. As mentioned in Chapter 6, the Ministry of Lands cannot provide accurate calculations for the areas of each estate or of its total area. However, the estate holders’ role in relation to land distribution is quite substantial. For this reason their participation in the survey is very important to this paper.
The opinions and perceptions of the estate holders are also significant, because these estate holders are represented in the legislature and are actively involved in law-making with their nine representatives in the Legislative Assembly. Any change in policy and law related to land may also have significant effect on the powers of the estate holders relating to land.
Table 11 (Part 1 and 2) below summaries the views of the estate holders on the nine recommendations made by the 2008 Land Commission in relation to women’s right. Table 11 (Part 1): Estate holders’ view on the nine women’s right to land related recommendations made by the 2008 Land Commission. Issue Women entitle to Repeal limitations Daughter to Limitations on be granted and on unmarried succeed in the widow’s interest register town daughter’s interest absence of a son allotment Agree l 17% 5 83% 2 33% 5 83% Disagree 4 66% - 3 50% - Not sure 1 17% 1 17% 1 17% 1 17% Total 6 100% 6 100% 6 100% 6 100%
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Table 11 (Part 2): Estate holders’ view on the nine recommendations made by the 2008 Land Commission relating to women’s right to land. Issue Permission for Rights of deserted Right of children Landholder to offer widow to lease or wife clarity born out of plots of land to mortgage land wedlock siblings and children Agree 5 83% 5 83% 1 17% 6 100% Disagree 1 17% - 5 83% - Not sure - 1 17% - - Total 6 100% 6 100% 6 100% 6 100%
It is apparent from Table 11 (Part 1 and 2) that there was a strong support for five of the recommendations and lack of support for the other three recommendations. The five recommendations that attracted the most support from the six estate holders are: (i) The repealing of the limitations of fornication and adultery on an unmarried daughter’s interest on land; (ii) The repealing of the limitations of fornication and adultery on a widow’s interest on land; (iii) Permission for a widow to lease or mortgage her deceased husband’s land; (iv) Right of a deserted wife to live and utilise her husband’s land; and (v) Landholders should be required to offer plots of land to brothers, sister and children when sub-dividing a tax allotment.
Recommendations (i) to (iv) obtained 83 percent support from the estate holders, whereas recommendation (v) gained 100 percent support. In relation to recommendation (v) above, two of the estate holders were of the opinion that if the law was to impose an obligation on the landholder to offer plots of land in sub-divided land to his brothers, sisters and children, it would provide fairer distribution of land to women.
From statistics, the estate holders, despite having different views and perceptions on each issue, are resolute when it comes to the fundamental part of the current land tenure system being the inheritance of land by male heirs born within wedlock. This is demonstrated by
174 the majority opinion of the estate holders against the following recommendations of the Commission: (i) women should have the right to be granted and register land; (ii) daughter should succeed to the land in the absence of a son; and (iii) legally adopted children should succeed to adoptive father’s land in the absence of children born in wedlock.
The majority of the estate holders considered that permission for women to lease land under the current land tenure system suffices, and that women who lease land are considered as landowners.
It was interesting that one of the main concerns from the estate holders was in relation to traditional family land. These are lands that have been in a family for decades. Such lands have also carried that family’s name. In the estate holders’ opinion it would be excruciating for the descendants of such family if another family name held such land. In Tongan culture traditional family land signifies a family’s identity. For each estate, there are certain traditional family lands that have a strong family connection to them. These are the lands that the estate holders are most concerned about to ensure that rights to such lands should be maintained through male heirs. One of the estate holders firmly pointed out that a woman, when married, will carry her husband’s family name. In this situation it is not acceptable to a family to have their forefathers’ land made subject to another family name, if for instance, the land is inherited by a daughter in the absence of a son. This is one of the situations that would be unacceptable to the estate holders.
One of the estate holders who did not support the recommendation for women to have the right to apply and register land said that ‘there is insufficient land because at present there is not enough land to distribute to males.’ He also stated that the population has increased, but the land is still insufficient. On the other hand, one of the estate holders who supported women’s right to register land said he ‘has no problem with women’s rights to register and own land in Tonga’. He firmly pointed out that in Tonga today, women’s rights in general are not a top priority and may be considered as “fringe,” but he genuinely believed 175 that ‘[t]he fringe of today could be the main stream of tomorrow’. He confirmed that indeed there is insufficient land, but that the main issue was to find a solution. The same estate holder said that he was aware of the concern from the commoners and the estate holders that land should not be inherited through the female line. However this concern is “unfair and nonsense” because the current monarchy descends through a female line (Queen Salote Tupou III) and some of the estate holders are also descendants of a female line.
The author is mindful that six of the estate holders can not accurately represent the view of the 39 estate holders. However the opinions of these estate holders, gives a general indication of what all the estate holders’ perceptions may be. It seems likely that estate holders are supportive of improving women’s rights to land in general, but only some aspects.
7.5 CONCLUSION In conclusion the data shows that there is general support from the people towards improving women’s rights to land in Tonga. The age and locality of commoners’ participants did not affect the data. In fact, the answers and opinions were homogenous throughout the whole of Tongatapu as in Vava’u. Males in some cases supported some of the aspects of women’s rights while women did not, and, in some cases, it was vice versa. From the beginning of the survey, it was obvious that about 99 percent of the participants were not well versed in some of the aspects of the land laws. Some interviewees were confused particularly with specific areas such as succession rules involving daughters. The recommendation to repeal the limitations of fornication and adultery on unmarried daughter’s interest gained more support from both genders than the recommendation for repeal of the same limitations on a widow’s interest. The reason for this could be that in the Tongan society, adultery and fornication of married people is considered more appalling than such conduct by unmarried people. Estate holders support the improvement of women’s rights to land in Tonga to some extent. What is apparent from the opinions of the estate holders is that they believe that the essential part of the land tenure system of Tonga, as mentioned above, should not change. 176
Furthermore, it is interesting to note that the “fahu system” being customarily practiced, no longer gains the due respect and dignity that was traditionally afforded to it in earlier times. One of the estate holders stated that “fahu system” is based on respect and obligations and that this respect is earned by the fahu, but in today’s society some people are demanding respect. This statement sums up the situation with the “fahu system” in Tongan society today – that what used to be traditionally practiced as “fahu system” no longer exists today. Most of the Tongan people today choose their own fahu. Some are confused as to whether the father’s sister, or the paternal grandfather’s sister is the fahu. Clearly there is a change occurring in the current practice of the “fahu system” and the commoners’ prediction is that it will continue to change and in the future may not exist anymore. From the survey, this cultural argument against the promoting of women’s rights to land may not be as strong as it was two decades ago.
In summarising, the statistics collected from the survey are shown in the Table 12 below:
Table 12: Summary of quantitative statistics collected from the survey Issue % Support % support from from Estate Commoners Holders 1. Should Tongan women 21 years and above be entitled to be granted and registered town 79 17 allotment? 2. Should limitations of fornication and adultery on 75 83 unmarried daughter’s interest to her father’s land, be repealed? 3. Should daughter succeed to father’s land in the 38 33 absence of a son born in wedlock, as heir? 4. Should limitations of fornication and adultery on 43 83 widow’s interest to her deceased husband’s land be repealed? 5. Should widow have the right to lease or mortgage 83 83 her deceased husband’s land provided the heir consent? 6. Should deserted wife be given the right to live and 99 83 utilise her husband’s land?
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7. Should legal adopted children succeed to their 61 17 adoptive father’s land provided the adoptive father has no children born in wedlock? 8. Should landholder first offer plots of land to 83 100 brothers, sister and children when sub-dividing a tax allotment?
Table 12 shows there are four proposals that gained very high support from both commoners and estate holders, whereas two proposals were supported by the commoners only and not the estate holders, one proposal was supported by the estate holders but not commoners, and one proposal did not gain the support of either the commoners or estate holders.
In order of support, the proposal that gained most support was the proposal that a landholder who is sub-dividing his tax allotment must offer land to his brothers, sisters and children before other people. This gained 100 percent support from the estate holders and 83 percent support from the commoners. The second most supported proposal is that the deserted wife should have the right to live and utilise the husband’s land. There was 99 percent support from the commoners and 83 percent support from the estate holders. The proposal with third highest support was that a widow should have the right to lease or mortgage her deceased husband’s land provided consent is obtained from the heir. This had the support of 83 percent of the commoners and estate holders. The proposal which ranked fourth in amount of support is the proposal for the repeal of the legal limitations of adultery and fornication on unmarried daughter’s interest on land. The commoners gave 75 percent support while 83 percent of the estate holders supported this issue.
The two proposals that gained the support of the commoners and not that of the estate holders are, first, that Tongan women of 21 years and above should be entitled to apply for, and be granted, town allotments. 79 percent of commoners supported this issue whereas only 17 percent of the estate holders lent their support. The second proposal which gained only the commoners’ support is the proposal that adopted children should have the right to succeed to the adoptive father’s land in the absence of children born in
178 wedlock. The commoners gave 61 percent support for this recommendation, whereas only 17 percent support was given by the estate holders.
On the other hand, the one proposal that gained the support of the estate holders but not that of the commoners was the proposal to repeal the legal limitations on the widow’s rights to land. 83 percent of the estate holders supported the removal of these limitations and 43 percent of the commoners gave their support.
The one proposal that did not gain support from either commoners or estate holders is the proposal that a daughter should have a right to succeed to her father’s land in the absence of a son. This issue touches the very core of the land tenure system of Tonga and no doubt for that reason did not gain support from either estate holders or commoners.
The results of this survey, elementary and open to some criticism from experts as it may be, are interesting in that they provide the first opportunity to assess opinion towards some of the concrete proposals that emerged from the 2008 Land Commission Final Report. Hopefully the results of this survey will engender further public debate about these proposals, and further discussion as to which of these proposals should be accommodated within the society and culture of a contemporary Tonga.
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CHAPTER 8: CONCLUSION ‘Human rights are product of Western societies and thinkers.’631 They are often criticised for being ethnocentric or ‘focused on upholding the beliefs and social structures of particular ethnicities at the expense of the beliefs and social structure of other cultures.’632
INTRODUCTION The history of promoting a more gender friendly land laws for Tonga goes as far back, at least as 1975 with the Land and Migration Seminar held by the Council of Churches. One has to really comprehend the Tongan cultures and traditions and their daily interactions to fully understand why there has been such long hesitancy to change the land laws of Tonga to enhance more rights for Tongan women.
As a result of the research undertaken for this thesis, it is clear that there are several conflicting elements or factors to consider with regard to the promotion of women’s land rights in Tonga. This chapter endeavours to summarise these in the light of the findings from the research. On the one side, are the international commitments that Tonga has made towards gender equality, and the media technology and travel which produce a globalization generally of society, both of which tend to strengthen the pressure for increasing the rights of women to land. On the other side, is the shortage of land available for Tongan men and women, and the culture and customs of Tonga society, both of which tend to a conservative approach to innovation and new ideas, including new ideas about women’s rights to land. Following this analysis, the thesis will then conclude by attempting to provide some recommendations as to ways forward for improving the rights of women to land in Tonga.
631 Anita Jowitt and Tess Newton, above n 24, p 193. 632 Anita Jowitt and Tess Newton, above n 24, p 193. 180
8.1 LAND LAWS AND TONGAN TRADITIONS, CULTURES AND SOCIAL SYSTEM Chapters 1 and 2 provides sufficient social background behind the enactment of the current land tenure system entrenched in the Act of Constitution of Tonga633 and Land Act634. The history of the laws leading up to the enactment of the Land Act635 in 1927 shows that they clearly were influenced by men, who predominantly were advisers to Tupou I. Moengangongo believed that Tongan traditional system ensured that the male owns the land, and “silent rights” were given to women because of their traditional social ranking636 (see subheading 1.4). Moengangongo’s view that Tongan women’s “silent rights” are no longer adequate is also the position supported in this paper. These “silent rights” are not certain, because they are not prescribed in the law. Tonga’s land tenure system provide for limited land rights for women. Tongan women can only lease land. The widow’s rights over her deceased husband’s land is subjected to other restrictions. Unmarried daughter’s interest on her father’s land is also subjected to restriction. These two interests cannot be inherited according to the succession rule in the land laws. They are temporary because these rights are subjected to the permanent and legal rights of male and they can be terminated by the registered landholder or heir at any time. On the other hand, Tongan men holds the land as registered owner. Upon death, the land is inherited according to the succession rule in the Act of Constitution of Tonga637 and Land Act638.
Professor Naidu’s statement, quoted earlier in Chapter 1 may indeed be the reality in Tonga in relation to the influential strength of culture and traditions on promotion of human rights, when he stated that ‘cultural traditions are still a powerful force and tend to weaken the modernization process and slow the development effort.’639 At present 17 members of the Legislative Assembly in Tonga are elected by the people whereas nine are members of the nobility. The nobles are the “keepers” of the Tongan culture and are very
633 Above, n 13. 634 Above, n 3. 635 Above, n 3. 636 Moengangongo, above n 4. 637 Above, n 13. 638 Above, n 3. 639 Professor Vijay Naidu, above n 31, p 11. 181 firm when it comes to Tongan cultures and traditions.640 There is therefore undoubtedly strong support from the nobles in relation to Tongan culture and tradition (see Table 12 in Chapter 7 where only 17 percent of the estate holders who participated in the survey, agreed for Tongan women 21 years and above to be granted and registered town allotment). In addition 17 people’s representatives are elected by electors who are reliant on the livelihood of customs and traditions of this country. As a result it seems very likely that within the foreseeable future the majority of the politicians in the Legislative Assembly will have a strong sense of culture and tradition. The views of the nobles coupled with the views of the people’s representatives would seem to be a main reason why there is strong hesitancy in the political arena to enhance the rights of Tongan women with regard to land.
Women’s limited rights under the current land laws are now inadequate. As the socio- economic circumstance of Tonga changed, Tongan women’s high status due to traditional practices has been reduced and undermined, leaving them without official authority or right.641 The women’s right to land is one of the concepts of human rights the implementation of which involves ‘delicate balancing ... of limited resources, core Tongan cultural values, fundamental Christian values and liberal ideologies.’642 At this point in time, Tongan culture has a significant restraining influence on the promotion of land rights for Tongan women.
8.2 SHORTAGE OF LAND FOR DISTRIBUTION For some decades there has been insufficient land for distribution to commoner males 16 years and above.643 As discussed in Chapter 1 Maude predicted in 1965 that this shortage of land would be serious in the future. Now is the future referred to by Maude and there is shortage of land. The shortage of land may be addressed in several ways. The first is to introduce compulsory acquisition of abandoned land – land which has been abandoned by
640 Hon. Lord Ma’afu, above n 20. 641 Japan International Cooperation Agency, ‘Country Gender Profile: The Kingdom of Tonga’ (2010) 642 United Nations Human Rights Council, above n 29, p 3. 643 Hon. Lord Ma’afu, above n 20. 182 a landholder in accordance to the Land Act.644 Such law may provide a time limitation of two years for an allotment to be considered abandoned as in the ‘forfeiture’ section under the Land Act. Because of its mandatory nature, compulsory acquisition of abandoned land may motivate landholders to use his allotment productively and in failing to do so will provide the legal “excuse” for either the estate holder or Minister of Lands to “take back” the allotment, thereby making such allotment available. The second way to address this shortage of land issue is to enforce the forfeiture of land by landholder when land is abandoned by more than two years.645 So far there has not been any case in the Land Court brought by the Minister of Lands against a landholder to forfeit his allotment. But this section must be enforced to allow more “inactive” land to be re-distributed. The third way, is to increase the tax payable by each allotment holder on his land and strengthen the enforcement of the tax payable.646 The increasing of land tax should encourage allotment holders who have abandoned their lands to forfeit their rights to such lands, making such land available to be re-distributed.
Another method of addressing the shortage of land is by reducing the size of allotments, to which Tongans are entitled, especially tax allotments. Another method is by requiring estate holders to make more of their land available for allocation of allotments.
The shortage of land is a real concern, and one cannot give what one does not have. Therefore the shortage of land is a very important element and should be given particular attention when considering the promotion of more land rights for women in Tonga. The practice now is that some tax allotments are being subdivided into town allotments and to cater for people migrating to town areas.647 The lands of Tongan who have migrated overseas, leaving their land unattended, should also be considered.
644 Above, n 3. 645 Section 44(2), above n 3. 646 Section 31, above n 3. 647 Hon. Lord Ma’afu, above n 20. 183
The important question specific to this thesis is – does the issue of shortage of land justify not giving Tongan women more rights to land? When the Land Act was enacted, Tongan women were hardly seen doing hard labour in the tax allotment, whereas of now with the tractors and other machines, women are seen in the tax allotments almost as much as men. Men and women are now equally capable of developing lands, amongst other things. Land, like any other property should be borne equally between men and women regardless of how big or small it is.
8.3 TONGA’S COMMITMENTS TO GENDER EQUALITY INSTRUMENTS Chapter 3 discussed the international and regional gender equity policies to which Tonga has made commitments. These commitments goes back to about 1995 when Tonga joined the other countries in adopting the Beijing Declaration and Platform for Action 1995 and its subsequent instruments.
Tonga has done so much to improve women’s right in other areas but not in relation to land. Tonga’s stance is very clear on amending the succession laws to allow women to succeed to land – that is that Tonga will not amend the succession rule in the foreseeable future. This was made clear by the Minister of Internal Affairs Hon. Lord Vaea in his responses to the recommendation upon Tonga’s second UPR as referred to in Chapter 3.
However when joining the international community in promoting gender equality, Tonga should make the effort to also fulfill its obligations under the instruments and one of its commitment is to improve legal framework to promoted more land rights for Tongan women. Failing to do so will result in Tonga’s reputation at the international community being questioned.648 Further nowadays there are more Tongans, particularly women, who are becoming increasingly aware about the human rights ideologies, than were Tongans about 20 years ago. Tongan women are more educated and more aware of their rights. In addition, there are many Tongan people who have migrated overseas and are influenced
648 Example of Tonga’s failure to complete its obligation to a Convention was when Tonga failed to submit its first report after acceded to the Convention on the Rights of the Child. 184 with western thinking. These factors now affect most Tongans’ attitude towards the land tenure system entrenched in Tongan traditional social system.
8.4 TONGA’S NATIONAL POLICIES Tonga has National Policy on Gender and Development 2001 (revised in 2012) in place to respond to the need for Tonga to promote gender equality. However women’s rights to land has not been seen to be part of the areas to be promoted in this national policy.
In addition the current practices in relation to land are still very much the same as they were 45 years ago when the Land and Migration Seminar, hosted by the Council of Churches, was conducted in 1975. These practices are recorded to be the same in the 1983 Land Commission report and 2008 Land Commission’s Final Report. The Land and Migration Seminar report, 1983 Land Commission report and 2008 Land Commission’s Final reports all support more rights to be given to women. The two Land Commissions’ reports are indeed very important because the recommended amendments to the land laws, including the improvements of the women’s rights to land, were based on the view of the public as collected from the numerous public surveys conducted by the two Land Commissions. But despite the effort and years of hard work put into the reports of the two Land Commissions there has not been any action on the recommendations in both reports.
8. 5 WAY FORWARD FOR WOMEN’S RIGHTS TO LAND IN TONGA To conclude this chapter the factors discussed above in subheading 8.1, 8.2, 8.3 and 8.4 need to be borne in mind when considering how and when to enable progress with regard to the women’s rights to land in the Tonga. Progress for more land rights to Tongan women may take some time, but like other progress, resources and time are needed. The survey conducted for this thesis suggests that both commoners and estate holders support some changes to Tongan women’s current interests. On the other hand, the estate holders and commoners surveyed do not seem to support establishing permanent land rights for
185 women.649 It is therefore recommended that promoters for women’s land rights should first focus on repealing the restrictions on Tongan women’s current land interests, before proceeding to promote for more permanent rights in the land laws.
Further, it is also recommended that more public awareness programs on human rights be undertaken throughout the five inhabited islands of Tonga. The overall aim of these awareness programs is to educate people on human rights in general. Focusing on the general notion of human rights may avoid the misconception that human rights refers only to women’s rights. These awareness programs may have three components as follows; a. Civic education programs targeting the people at grassroots level. Civil Society Organisations promoting human rights may assist with these awareness programs. b. Public awareness on what are human rights targeting the estate holders. As previously mentioned in Chapter 1, estate holders are “keepers” of culture and traditions. They are in a particularly important position to be convinced that human rights are no threat to culture, traditions and the social system of Tonga, rather human rights could complement these basic aspects of the Tongan society. c. Human rights component be included in the education curriculum for primary and secondary schools in Tonga to educate youths of Tonga on human rights.
Finally, Tonga has come a long way in relation to its land laws. Culture, traditions and social system are very much part of the formation of these land laws and are indeed embedded in the sections of the Act of Constitution of Tonga650 and Land Act651. The land laws do discriminate women against their rights to the land but it is expected that these issues can be addressed given there are strong active advocates for this issue in Tonga.
The political reform in Tonga in 2010 was a slowly developing product of the interplay between overseas principles of democracy and the practices of the culture and society of
649 These permanent rights include women to register town allotment and daughters to succeed to father’s land in the absence of a son. 650 Above, n 3. 651 Above, n 3. 186
Tonga. Much the same, it can be hoped will occur with regard to land rights for women in Tonga. Time alone will tell.
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BIBLIOGRAPHY
A. LEGISLATION
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I. BOOKS 1. Anita Jowitt and Tess Newton Cain (eds.), The Passage of Change: Law, Society and Governance in the Pacific (2003). 2. Dr. Rev. Sione Latukefu, The Tongan Constitution – A brief history to celebrate its Centenary, (1st ed., 1975). 3. Farran and Paterson, South Pacific Property Law (2004). 4. Henry J Steiner, International Human Rights in Context (3rd ed, 2008). 5. Ian C Campbell, Island Kingdom: Tonga Ancient and Modern (2nd ed., 2001). 6. Kerry James, ‘Right and Privilege in Tongan Land Tenure’ in R. Gerard Ward and Elizabeth Kingdon (eds), Land, Custom and Practice in the South Pacific (1st ed, 1995). 7. Ron Crocombe (ed), Land Tenure in the Pacific (3rd ed, 1987) p 121. 8. R. Gerard Ward and Elizabeth Kingdon (eds), Land, Custom and Practice in the South Pacific (1st ed, 1995). 9. Siaosi Moengangongo, Land Tenure and Productivity: The case of Tonga (1992). 10. Sione Latukefu, Church and the State in Tonga (1980). 11. Paterson and Farran, South Pacific Land System (2013).
J. ARTICLES 1. Rev. Dr. A. Harold Wood, ‘Overseas Missions of the Australian Methodist Church, Tonga and Samoa’, (Vol. 1, 1975). 2. Mosikaka Moengangongo, ‘Tonga: Legal Constraints and Social Potentials’ (1986) in University of the South Pacific, Land Rights of Pacific Women.
K. THESIS 1. Alaric Maude, Population, Land and Livelihood in Tonga (PhD thesis, Australian National University, 1965).
L. CONFERENCE PAPERS 1. S. Laitia Fifita, ‘Problems of the land – People’s View’ (Paper presented at the Land and Migration in the Council of Churches Conference, Nuku’alofa, 22-26 September 1975), p 31. 2. Justice Roberts, ‘Constitution and the Land Laws of Tonga’ (Paper presented at the Land and Migration in the Tonga Council of Churches Conference, Nuku’alofa, 22- 26 September 1975) p 11. 3. Tonga Council of Churches, ‘Land and Migration’ (Compilation of Conference Papers and Resolutions of the Conference held 22-26, September 1975).
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M. WEBSITES 1. actionaid, Her mile – Women’s rights and access to land (March 2010). Available at http://www.actionaid.it/filemanager/cms_actionaid/images/DOWNLOAD/Rapport i_DONNE_pdf/HerMile_AAItaly.pdf (Accessed 13 October 2012). 2. Annan K (UN Secretary-General), In Larger Freedom: Towards Freedom Developments, Security and Human Rights for All (A/29/2005) (21 March 2005). Available at http://archives-trim.un.org/webdrawer/rec/455131/view/Item-in- KAA%20ODSG%20- %20Stategic%20Planning%20Unit%20%28SPU%29%20%20-%202005.PDF (Accessed 14 October 2012). 3. Commonwealth Secretariat, Commonwealth Plan of Action for Gender Equality 2005-2015 (Adopted June 2004). Available at http://www.unesco.org/education/information/nfsunesco/pdf/BEIJIN_E.PDF (Accessed 8 October 2012). 4. Fairbairn-Dunlop P, ‘Chapter 4- Gender, culture and sustainable development – the Pacific way’ in Culture and Sustainable Development in the Pacific. Available at http://epress.anu.edu.au/culture_sustainable/ch04.pdf (Accessed 26 September 2012). 5. Human Rights Council, United Nations General Assembly, ‘Report of the Working Group on the Universal Review – Tonga’ (2013). Available at http://ohchr.org/HRBodies/UPR/.../A_HRC_23_4_Tonga_E.doc (Accessed 5 June 2013). 6. IFAD, Fact Sheet on Women – Land Tenure Security and Poverty Reduction. Available at http://www.ifad.org/pub/factsheet/land/e.pdf (Accessed 12 October 2012). 7. Matangi Tonga Online, (18 September 2009). Available at http://www.matangitonga.to/article/20090918_1047_cedaw.html/ (Accessed 21 September 2012). 8. New Zealand Kaniva Pacific ‘Tonga’s second universal periodic review on human rights’ (January 2013). Available at http://www.nzkanivapacific.co.nz/2013/01/25/tongas-second-universal-periodic- review-on-human-rights/ (Accessed 26 May 2013). 9. OHCHR, ‘TIMETABLE FOR THE UPR WORKING GROUP SECOND SESSION (5- 19 MAY 2008)’. Available at http://www.ohchr.org/EN/HRBodies/UPR/Documents/Timetable_Second_Session. pdf (Accessed 8 October 2012). 10. Pacific Island Forum Secretariat, Gender Policy (December 1998 revised May 2003). Available at
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http://www.forumsec.org.fj/resources/uploads/attachments/documents/PIFS_Gend er_Policy_May_2003.pdf (Accessed 13 October 2012) p1. 11. Rosando C (1990), ‘Understanding Cultural Relativism in Multicultural World (Or Teaching the Concept of Cultural Relativism to Ethnocentric Students)’, (1990). Available at http://www.rosado.net/pdf/Cultural_Relativism.pdf (Accessed 1 May 2012). 12. Statistics Department of Tonga, Tonga National Population and Housing Census 2011 (2011). Available at www.spc.int/prism/tonga/ (Accessed 22 November 2012). 13. The Revised Pacific Platform For Action On Advancement Of Women And Gender Equality 2005 to 2015. Available at http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B54321397- C978-46A8-A2A7-972FF13860D5%7D_Pacific-Outcomes.pdf (Accessed 26 September 2012). 14. Tonga Ministry of Information and Communication, ‘Gender equality and development is central to achieving MDG’ (2012). Available at http://www.mic.gov.to/gender-policy/women/4032-gender-equality-and- development-is-central-to-achieving-mdg (Accessed 5 June 2013). 15. United Nations ‘The foundation of international human rights law’. Available at http://www.un.org/en/documents/udhr/hr_law.shtml (Accessed 2 October 2012). 16. United Nations Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review – A/HRC/23/4’ (March 2013). Available at http://lib.ohchr.org/HRBodies/UPR/.../A_HRC_23_4_Tonga_E.doc (Accessed 6 June 2013). 17. United Nations Treaty Collections ‘Status of CEDAW’. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 8&chapter=4&lang=en (Accessed 2 October 2012). 18. United Nations Treaty Series ‘Status of Treaty - Convention on the Elimination of All Forms of Discrimination Against Women’. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 8&chapter=4&lang=en (Accessed 12 October 2012). 19. UPR-INFOR, ‘Responses to Recommendation – Tonga’ (Adopted in the Plenary in June 2008). Available at http://www.upr- info.org/IMG/pdf/Recommendations_Tonga_2008.pdf (Accessed 8 October 2012) 20. Women’s Environment & Development Organisation, Beijing Betrayed – Women Worldwide Report that Governments have failed to turn the Platform into Action. (March 2005). Available at http://www.choike.org/documentos/beijing_betrayed/beijing01.pdf (Accessed 8 October 2012).
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N. INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 1. Beijing Declaration and Platform for Action Fourth World Conference on Women (Beijing Declaration) (Adopted in 15 September 1995, adopted by Tonga on 15 September 1995). Available at http://www.unesco.org/education/information/nfsunesco/pdf/BEIJIN_E.PDF (Accessed 8 October 2012) p 15. 2. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Available at http://www.un.org/womenwatch/daw/cedaw/cedaw.htm (Accessed 8 August 2012). 3. Convention on the Rights of the Child 1989 (CRC) (Entered in to force 2 September 1990, acceded to by Tonga 6 November 1995) UNTS. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 11&chapter=4&lang=en (Accessed 8 October 2012). 4. United Nations Human Rights ‘Universal Declaration of Human Rights’. Available at http://www.ohchr.org/en/udhr/pages/introduction.aspx (Accessed 8 October 2012). 5. United Nations, ‘Declaration of Human Rights’. Available at http://www.un.org/en/documents/udhr/index.shtml (Accessed 13 October 2012). 6. United Nations, Millennium Development Goals Report 2005. Available at http://unstats.un.org/unsd/mi/pdf/mdg%20book.pdf (Accessed 20 October 2012).
O. NATIONAL POLICIES 1. Kingdom of Tonga, UPR – 2008 Country Report. 2. Kingdom of Tonga, National Policy on Gender and Development (2001). 3. Royal Land Commission, Report on its Review of All Practices, Usages and Laws Relating to Land (1985). 4. Tonga National MDG Taskforce, Millennium Development Goals in the Kingdom of Tonga – Today and Tomorrow, Report 1 (March 2005). 5. Royal Land Commission, Final Report on its Inquiries into the Land Laws and Practices of the Kingdom, (2012). 6. Tonga Women Development Center, Three Year Implementation Plan and Gender Development 2003/04-2005/06 (November 2002).
P. SUBMISSIONS TO LAND COMMISSIONS 1. Dr. Elizabeth Wood-Ellem, Submission to the Royal Land Commission of Tonga (2011). 2. Guy Powles, Submission to the Royal Land Commission, Nuku’alofa, Kingdom of Tonga, (4 June 2011). 3. Ministry of Lands, Survey, Natural Resources and Environment, Final Report on Information Request from the Royal Land Commission, (30 September 2011). 193
Q. DICTIONARIES 1. A Delbridge et al, Macquarie Dictionary (3rd ed., 1997). 2. A. S Hornby, Oxford Advanced Learner’s Dictionary of Current English (6th ed. 2000). 3. Bryan A. Garner et al (eds.), Black’s Law Dictionary, (7th ed, 1999).
R. INTERVIEW 1. Interview with Hon. Clive Edwards, Minister of Justice and Public Enterprises (Former 1983 Royal Land Commissioner and Participant of the 1975 Council of Churches Seminar ‘Land and Migration’) (Nuku’alofa, 19 October 2012). 2. Interview with Hon. Ma’afu, Minister of Lands. Survey, Natural Resources and Environment (Nuku’alofa, 25 February 2013). 3. Interview with Lord Tupou, Honorable Commissioner 2008 Land Commission and Former Commissioner for 1983 Land Commission, (19 November 2012, Nuku’alofa). 4. Interview with Mele ‘Amanaki, President, Tongan Women’s National Congress (Port Vila, 7 February 2010). 5. Interview with Miss Rosamond Bing, Legal Administrator, Ministry of Lands, Survey, Natural Resources and Environment (Nuku’alofa, 28 August 2012). 6. Interview with Mrs. Polotu Paunga, Director, Women Development Center (Nuku’alofa, 30 October 2012). 7. Interview with Prince Tu’ipelehake, Estate Holder of Tonga (Nuku’alofa, 3 May 2013). 8. Interview with Mrs. Vika Matekitonga, High School Teacher for Tongan Studies Subject, ‘Api Fo’ou College (Nuku’alofa, 5 November 2012).
S. PERSONAL CONVERSATION 1. Personal conversation with Mr. Neil Adsett, Attorney General, Tonga (Nuku’alofa, 14 November 2012). 2. Personal conversation with Mr. Salesi Fotu, Deputy Secretary for Land Management, Ministry of Lands, Survey, Natural Resources and Environment (25 September 2012). 3. Interview with Mrs. Gloria Pole’o, Clerk of the Legislative Assembly – Former Legislation Drafter Crown Law Office, (11 June 2012, Nuku’alofa).
T. EMAILS 1. Email from Gloria Guttenbeil-Pole’o
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2. Email from Gloria Guttenbeil-Pole’o
U. LETTERS 1. Letter from Mr. Kautoke (Cabinet’s Secretary General) to Dr. Viliami Latu (Chief Clerk, Legislative Assembly) (Ref.ORG 3/7) (11 September 2009) as part of Hansard record No.31/2009 dated 17 September 2009.
V. SPEECHES 1. His Majesty King Taufa’ahau Tupou IV, ‘Opening Address on the Seminar on Land Tenure and Migration’ in Tonga Council of Churches, Land and Migration. 2. Ministry of Information and Communication, ‘Opening Address for the Sub- regional Workshop on CEDAW Ratification for Non-Ratified Countries’ (2008), retrieved from http://www.mic.gov.to/gender-policy/women/402-opening- address-for-the-sub-regional-workshop-on-cedaw-ratification-for-non-ratified- countries-5-7-november-2008-jidh-nukualofa (Accessed 5 June 2013). 3. Tonga Attorney General Neil Adsett, ‘Opening Speech’ (Speech given at Tonga Human Rights Workshop –UPR , 13 March 2012)
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APPENDIX
Appendix 1 List of royal estates
Appendix 2 List of royal family estates
Appendix 3 List of estate holders
APPENDIX 1
LIST OF ROYAL ESTATES (Schedule II, Land Act [Cap. 132] (Tonga))
Tongatapu and ‘Eua Loto’ā, Sia ko Veiongo (being the area of ground bounded by Vuna Road, Sipu Road, Wellington Road and Vaha’akolo Road), Pangai and Mapu’afuiva (Nuku’alofa), Kanokupolu, Mataliku, Houma (‘Eua).
Ha’apai Pangai (‘Uta) in Lifuka; Tau’akipulu; Pangai in Foa; Mango (island); Nukunamo (island).
Vava ‘u Afinematá and Fua’amotu (island); Nuapapu (island); Pangaimotu (excepting Tokolo, Nukuleka, Haufolau, ‘Utulei and Ha’afakahenga); Tufutele (*’api); Fatai (*’api); ‘Ovava (*’api); Holonga; Fangaliki (*’api); Keitahi (*’api); Tamamu’aloto (*’api); Veitatalo (*’api); Pipilotoi (*’api).
Niuatoputapu Falehau.
Niuafo’ou Mata’aho.
APPENDIX 2
LIST OF ROYAL FAMILY ESTATES (Schedule III, Land Act [Cap. 132] (Tonga))
Tongatapu and ‘Eua Matāliku; Tufumāhina and Talangaholo; Matatoa, Finefekai, Pangaimotu (island); ‘Onevai (island); Ta’anga (‘Eua).
Ha’apai Lea’aetohi, Fiehua; Toumu’a; Faikakai; Houma Tatangia, including Velitoa (Uoleva); Fuhu in Foa; Tamata’epele in Foa; Siale (Lofanga); Mata’aho (‘Uiha); Faka’osikato (Ha’afeva); Alaloa (Tungua); Niu-’a-Kalo (at Holopeka).
Vava’u Havelu, Loto’a.
APPENDIX 3
LIST OF NOBLES AND TITULAR CHIEFS TITLES AND THEIR RESPECTIVE ESTATE (Schedule I, Land Act (Tonga))
Estate Holder Estate
1 TUNGI Mu’a but not to include Havelu, Fatumu and Lavengatonga but it shall include Ha’atakalaua to Fua’amotu and Kai’avale and Ha’atui also that part of Navutoka that was divided by Malupo and Toi.
2 KALANIUVALU Lapaha, Hamula and Toloa.
3 TU’IPELEHAKE Pelehake and Ha’atalafale in Ha’apai and Ha’atalafale in Vava’u.
4 NUKU Kolonga, Poha and Kotongo.
5 NIUKAPU Fangale’ounga in Ha’apai.
6 MA’AFU The landward side of Tokomololo and Vaini.
7 LAVAKA Fualu and Pea
8 FIELAKEPA Havelu
9 ATA Kolovai mo ‘Atata
10 VE’EHALA Fahefa and Pangai in ‘Eua.
11 ‘ULUKALALA Hihifo in Vava’u.
12 TU’IHA’ATEIH Tungua, Matuku, Ha’ateiho in Tongatapu but not including O Manamo’ui, Ha’ateiho, in Ha’apai, Ha’ateiho in Vava’u, Vaikeli in Tongatapu and the town allotment of Fine’ehe in Pangai Ha’apai.
13 TU’IHA’ANGAN Ha’ano, Pukotala and Muitoa. A 14 MALUPO ‘Uiha, Taka’amoato’a and Teleki.
15 FOTOFILI ‘Alele and western side of Angaha and ‘Ahau, Palau and Ha’ahoko.
16 MA’ATU Vaipoa and Hihifo but not to include Falehau and Matavai and Tafahi; and in Niuatoputapu,-Vaotahi, Hunganga, Tavili and the waste land between Hunganga and Tavili.
17 LUANI Nakolo, Malapo and Fetoa in Tongatapu, Tefisi in Vava’u. 18 TU’ILAKEPA Talasiu, Ofu, Okoa and Vasivasi.
19 TU’I’AFITU Makave, Holopeka in Ha’apai, and Fonoifua.
20 VAEA Houma
21 FAKAFANUA Ma’ufanga, Faleloa and Nga’akau.
22 VAHA’I Fo’ui and Ta’anea.
23 TU’IVAKANO Nukunuku, Matafonua, Vaotu’u, Matahau.
24 ‘AHOME’E Ha’avakatolo and ‘Utui.
25 FULIVAI Hunga, Fangalepa and Loto’uiha.
26 FAKATULOLO Falevai
27 TANGIPA Mahinafekite in Niua; and Angihoa in Niuatoputapu
28 FUSITU’A Faletanu and eastern side of Angaha and Ma’ufanga in Niua.
29 TUITA ‘Utungake and Ha’afakahenga and Futu in Niuafo’ou.
30 FOHE Puke
31 MOTU’APUAK Te’ekiu and Haufolau. A 32 LAUAKI Talafo’ou and Masilamea in Vava’u.
33 AFU Ha’alaufuli
34 FOTU Leimatu’a
35 TU’UHETOKA Ha’afeva
36 ‘AKAU’OLA Taunga
37 LASIKE Lakepa in ‘Ahau, Lakepa in Neiafu, Lakepa in Ha’atau, Lakepa in Kala’au, Lakepa in Ha’amea, Lakepa in ‘Eua, Lakepa in Navutoka, Fonongahina, and Tafangafanga in Hahake.
38 VEIKUNE Tongatapu — 1. Longoteme and Matamoana. 2. ‘Oneata (island). 3. Kanatea (island).
Vava’u — 1. Pale’a to Fongotofe. 2. Talahuo landward side of Fongotofe. 3. Lolopipi between Nga’akau and Vaimalo. 4. Longomapu. 5. Kolotahi (island). 6. Ha’akoka and Fangaeva.
39 HEIR ‘Utulau and all parts belonging to it in Tongatapu, Nomuka APPARENT with Nomukeiki and Lofanga with Niniva in Ha’apai, Taoa and all parts belonging to it in Vava’u