NATIVE TITLE AND THE TORRENS SYSTEM: A COMPARATIVE LAW ANALYSIS OF TENURE CONVERSION IN THE FIJI ISLANDS by Kenneth Alexander Chambers A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in Development Studies Copyright ©2015 by Kenneth Alexander Chambers School of Government, Development and International Affairs Faculty of Business and Economics The University of the South Pacific 2015 Dedication This thesis is dedicated to my son Alex, who died before it was completed, to my family, friends and colleagues, to communities and individuals or their descendants dispossessed or marginalized by constraints on access to land or by indiscriminate or unilateral conversion of native land to leasehold or freehold tenure, and to good government in which agencies and individuals act responsibly, formulating and implementing land tenure reform which meets the needs of the present generation without compromising the ability of future generations to meet their own needs. iii Native title and the Torrens system: A comparative law analysis of tenure conversion in the Fiji Islands Abstract This thesis is a comparative law study addressing the thesis question: “Can Fijian land tenure policy include carefully regulated partial conversion of iTaukei land to freehold based on the Torrens system?” Central to this thesis is the proposition that the legal framework already exists for the conversion of iTaukei land to freehold: social, economic, political, and cultural dimensions impacting at policy level, giving peripheral texture to the thesis enquiry. Fiji is at a point in its development where the land system is not meeting social or economic expectations. Access to land and better utilization of the resources it contains is a core element in the human right to life and it is central to any sustainable development imperative but the outcomes of land policy providing for the conversion of native land to leasehold or freehold tenure is notoriously difficult to predict and there are well documented catastrophes. In 1840 there was not an acre of New Zealand which did not have an owner according to native custom and before cession in 1874 it was the same in Fiji. Colonial intervention delivered different outcomes, but both countries are well documented illustrations of tenure conversion. In Fiji, native title accounts for about 90% of the land mass and the impact of tenure conversion to leasehold has been relatively benign. New Zealand on the other hand was swamped by a colonial tsunami of conversion to freehold so that almost nothing is left of 66.4 million acres of Maori customary land: all that remains is the shadow and the socio-economic consequences. Tenure conversion ignited the land wars in New Zealand and in Fiji land tenure policy with the prospect of a similar outcome is arguably (albeit more often than not unarticulated) a component cause of all four military coups since 1987. Land tenure reform is a defining issue in Fiji.This thesis will show by comparative enquiry primarily focused on tenure conversion to freehold in New Zealand and Fiji, supplemented with an analysis of common law and recent native title law from other jurisdictions, that Fijian law already contemplates the conversion of iTaukei land to freehold, and that a limited tenure conversion process can be an important land tenure policy option. iv Acknowledgements This thesis is on a topic which is sensitive and significant in any developing country and this is particularly so for the Fiji Islands. It is written from a Caucasian vulagi’s perspective, which inevitably gave shape and form to the data acquisition and to the ultimate conclusion. This thesis has been a journey filled with trepidation from start to finish. Without the many organizations and individuals that succored it this work would never have reached the finish line. Only some of that valuable assistance is directly acknowledged here, but my gratitude goes out to all those who helped. In the early stages Associate Professor Mugambwa’s article on the Citadel of Indefeasibility set me thinking, Professors Jim Evans and Jock Brookfield at Auckland University encouraged me, and the Taranaki Report written by Justice Edie Durie inspired me. The University of the South Pacific, its Vice Chancellor Rajesh Chandra, my Dean, Dr Kesaia Seniloli, and my Head of School Dr Savae Latu provided support and the enabling environment. My very special acknowledgement and thanks go to my primary supervisors, Professor Vijay Naidu in the Faculty of Business & Economics, and Dr Max Quanchi in the Faculty of Arts & Law, at USP and to the supervision panel made up of Associate Professors Jacinta Ruru and Greg Fry, they all went well beyond the call of duty, taking time from their busy schedules to read my drafts and provide constructive critiques. Finally, I would like to express my sincere gratitude to the examiners Professor Spike Boydell, Associate Professor John Mugambwa and Professor Steven Ratuva for making valuable recommendations, without them this thesis would certainly not have had the integrity it deserved. Vinaka vakalevu. v Native title and the Torrens system: A comparative law analysis of tenure conversion in the Fiji Islands Table of Contents Title page i Declaration ii Dedication iii Abstract iv Acknowledgments v Table of Contents vi - viii Table of Cases ix - xiv Table of Constitutions, Legislation, Treaties and Declarations xv - xvii Table of acronyms and abbreviations xviii Chapter 1 - Introduction 1 - 24 1.01 Background 1.02 Thesis question and proposition 1.03 Thesis limitations 1.04 The land problem 1.05 Contending approaches 1.06 Skeleton argument 1.07 Organization of the thesis Chapter 2 - Research parameters 25 - 50 2.01 Tenure conversion framework 2.02 Common law framework 2.03 Torrens system framework 2.04 Post-independence framework 2.05 Conclusion Chapter 3 - Tenure conversion 51 - 83 3.01 Introduction 3.02 New Zealand vi 3.03 Fiji Islands 3.04 Summary 3.05 Conclusion Chapter 4 - Common law heritage 84 - 113 4.01 Introduction 4.02 Feudal tenure 4.03 Leases and mortgages 4.04 Estates and interests 4.05 Ireland, Scotland and Wales 4.06 Wasteland and enclosure 4.07 19th century colonization 4.08 Magna Carta 4.09 Adverse possession 4.10 Equity 4.11 Restitution 4.12 Conclusion Chapter 5 - Colonial land tenure 114 - 141 5.01 Introduction 5.02 Native title 5.03 Torrens system 5.04 Indefeasibility 5.05 Land administration 5.06 Conclusion Chapter 6 - Recent law (Outline) 142 - 180 6.01 Richtersveldt Community v Alexkor 6.02 Haida Nation v British Columbia 6.03 Selangor v Sagong Tasi 6.04 Bennell v Western Australia 6.05 Sesana v Botswana 6.06 Aurelio Cal v Belize 6.07 BIOT v R (Bancoult) vii 6.08 Conclusion Chapter 7 - Recent law (Comparative) 181 - 203 7.01 Narawa v NLTB 7.02 Ngati Apa v AG for New Zealand 7.03 NZ Maori Council v AG for New Zealand 7.04 Kanakana v AG for Fiji 7.05 Conclusion Chapter 8 - Principles and Application 204 - 227 8.01 Introduction 8.02 Constitutional prohibition 8.03 Interpretation 8.04 Fiduciary obligations 8.05 Legitimate expectation 8.06 Legal framework 8.07 Conclusion Chapter 9 - Conclusion 228 - 236 Bibliography General 237 - 252 New Zealand 252 - 259 Fiji Islands 259 - 264 Appendixes A and B 265 - 270 viii Table of Cases Adeyinka Oyekan v Musendiku Adele [1957] 2 All ER 785 (PC) .................................. 135, 151 Advisory Opinion on Western Sahara (1975) ICJ Rep 12 ...................................... 20, 92, 93, 134 AG for British Honduras v Bristowe (1880) 6 App Cas 143 .................................................... 151 AG for the Isle of Man v Mylchreest (1879) 4 App Cas 294................................................. 90, 91 AG v Brown (1847) 1 Legge 312 (NSWSC) ................................................................... 13, 74 AG v Dublin Corp (1827) 1 Bligh NS 312 ............................................................................. 184 AG v Kumar and Riley [1985] FJCA 10; [1985] 31 FLR 23 ................................................ 119 Alexkor Ltd v Richtersveld Community (2003) 12 BCLR 130 ................................................. 133 Alexkor v Richtersveld Community .............................................................................................. 150 Alexkor v Richtersveld Community, unreported, (2003) CCT 19/03, judgment 14/10/03 129 Amadu Tijani v Secretary Southern Nigeria [1921] 2 AC 399…....18, 26, 30, 31, 32, 44, 46, 81 82, 102, 133, 134, 150, 154, 168, 170, 172, 191, 192 Anisminic v Foreign Compensation Commission [1969] 2 AC 147 ............................ 143, 195, 201 ANZ Banking Group v Acting Registrar of Titles [2013] FJHC 514 (4 October 2013) ....... 126 Assets Co v Mere Roihi [1905] AC 275 (PC)…….12, 22, 27, 32, 35, 36, 41, 54, 57, 81, 103 106, 112, 113, 115, 116, 120 Audubon Society v Superior Court (The Mono Lake Case) 658 P.2d 709 (Cal. 1983) ............. 184 Aurelio Cal v Belize Supreme Court, 18 October 2007 ...................... 15, 29, 34, 37, 150, 153 Australian Capital Television v Commonwealth (1992) 177 CLR 106 .............................. 143, 201 Austria (Emperor) v Day (1861) 3 DeGF&J 217 .................................................................... 184 Baker Lake v Minister of Indian Affairs ........................................................... 18, 32, 38, 43, 192 Bancoult (No 1) [2000] All ER (D) 1675; [2001] QB 1067 ................ 156, 157, 158, 162, 165 Bancoult (No 2) ................................................................................................