Custom Land Act Under the Gun, By Dan McGarry

Lands Minister Ralph Regenvanu confirmed earlier this week that he has written to Speaker, Esmon Sae, asking him to rule the private member’s bill to repeal the Custom Land Management Act out of order.

In a letter dated 11 October 2016, Mr Regenvanu reminded the Speaker that recent changes to the Constitution require that the Malvatumauri be consulted prior to any changes to land law being enacted in Parliament.

The bill to repeal the Custom Land Management Act was lodged by Opposition Leader Ishmael Kalsakau.

The explanatory note at the head of the Bill states that “the Land Management Act No. 33 of 2013 fails to enhance the application of this constitutional rule to enable the customary institutions throughout the Republic of Vanuatu to dispose of disputes over land owned in accordance with the customary law of each particular place”.

Mr Kalsakau was not available for comment due to personal travel overseas, but Opposition spokesman John Shing admitted that “I met with the Land management section of Malvatumauri and gave them a copy of the bill and explained what we intended to do.

“They advised that the Vanuatu council of chiefs would only be meeting in January or February of 2017.”

He argued that a consultation is not required because strictly speaking, the requirement arises only in the case of an amendment.

“We are not making an amendment as we intend to repeal the Act,” he wrote in a letter to the Daily Post.

He concluded: “The only slight amendments would be to the Land leases Act and these amendments are only adjusted so as cancel any reference to the Custom Land Management Act which we intend to repeal.”

Mr Regenvanu’s letter to the Speaker makes specific reference to Article 30 (2) of the Constitution, which states, “The [Malvatumauri] Council must be consulted on any question, particularly any question relating to land, tradition and custom, in connection with any bill before Parliament.”

The Daily Post contacted the Speaker’s office, and was told that the determination whether the bill was in order or not is a matter for parliamentarians to decide. It was suggested that Parliament could decide to forward the bill to a committee, which could conduct any required consultation.

The Clerk of Parliament said it was his duty to process all bills submitted to him, but added that a finalised bill had yet to be submitted by the Opposition.

The Custom Land Management Act has the subject of controversy since it was first passed in 2013. Real estate developers, investors, chiefs and academics have all complained at various times that the processes outlined in the Act are ungainly and impracticable. The Opposition argues that no single legislative solution can comprise the widely diverse kastom practices concerning land in Vanuatu.

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