Understanding of the implications of the Bainimarama constitution’s abolition of all protection for Native land is slowly spreading.
A storm has blown up on the Fiji Democracy Now blogsite on the issue of whether the Qarase Government broke the law with the swap of Native Land for freehold land in the Momi Bay development. It seems two things are being confused here.
1. Was the law broken to effect a swap of native land for freehold?
2. Did the landowners get a fair deal?
On the first issue, it’s clear the law was NOT broken. For starters, if the law had been broken, Sayed-Khaiyum would have jumped at the opportunity to take the Qarase Government before his hand-picked court. Perhaps, the fact that Qarase relied on legal advice might have complicated matters, but make no mistake the opportunity to expose even an innocent mistake would not have been missed.
Without being privy to the details, it seems to me the process was to make an indirect swap. Freehold land was acquired by the State and, under Section 4 of the Crown Lands Act, it is Crown land, and hence capable of being swapped under Section 3. The proof of this comes from none other than Sayed-Khaiyum when he closed what he saw as a loop-hole with (DECREE NO. 7 OF 2013), the STATE LANDS (AMENDMENT) DECREE 2013.
This very specifically disallows the process of an indirect swap. It says “any i Taukei land which is exchanged for portions of State land under subsection (3) must not be exchanged for portions of private freehold land under subsection (4).”
If the indirect swap process was not permitted, why did Sayed-Khaiyum need to issue a decree to ban it?
But let’s not lose sight of what’s important here. Sayed-Khaiyum thought he could take advantage of the confusion and pose as a protector of Native land. And why did he want to do this? Because he knows that once everybody understands that he’s removed all past Constitutional protections of Fijian land he will be the focus of a lot of anger.
As to whether the landowners at Momi got a fair deal, I don’t know and it’s clear there’s a lot of guessing and gossip going on here.
What I do know is that the Bainimarama constitution removes ALL the past protections for Fijian land. Any law on land can be passed with a simple majority. But that’s really no surprise because the key laws covering land have already been swept away by the Land Use Decree, which over-rides the Native Lands Trust Act and ALTA. (The first was designed to protect landowners, the second to protect tenants.)
The Land Use Decree 2010 gives the Prime Minister complete discretion to issue leases of up to 99 years with whatever rents or other conditions he chooses. Under the Land Use Decree 2010 he is required to consider the best interests of the landowners but he must also give equal weight to “the overall wellbeing of the economy.”
It is crystal clear. “All leases issued or renewed under this Decree shall take into consideration at all times the best interest of the land owners and the overall wellbeing of the economy.”
The Land Use Decree also requires that “all land available are leased with the purpose of providing a livelihood for all parties concerned”. What does that mean? Tenant’s rights? Take this in conjunction with “socio-economic” rights in the constitution and it looks like the ASK plan is to create rights for landless people to claim unused Native land, or to have existing leases extended. And remember, the PM’s decisions under the decree cannot be challenged in court. All power to Bainimarama.
This is typical ASK – sneaky and too clever by half. It’s why the constitution had to be rushed through. It’s also why we haven’t heard any details about decisions made by Bainimarama under the Land Use Decree. But ASK is making a mistake if he assumes we are all too stupid to notice the sweeping powers of the Land Use Decree and the removal of all protection of Native land under the draft constitution.
Does Bainimarama have any understanding of what ASK has in mind? Who knows? We can be sure Bainimarama hasn’t read any of the legislation or the draft constitution, but ASK may have told Bainimarama it’s worth trying get these powers over Native land in his hands, as that will be his means of building power.
But this is a very high risk strategy. Once the grab for total power over land is understood by landowners and their family members in the military Bainimarama will be in trouble.