Friday, May 10, 2013

Truth About Bainimarama's Land Use Decree to take Native Land on Whatever Terms he Likes

"..the Land Use Decree gives Bainimarama the power to take native land on whatever terms he likes. The fact that he’s used this power very carefully up to now shows only that he is stealthy. His only aim is to entrench his dictatorship."

by Navosavakadua

The illegal A-G has accused critics of his Land Use Decree of stirring up emotions on land, but let’s look at some very clear facts about his Decree.


He is lying when he says the Land Use Decree makes landowner approval necessary for leases issued under its powers.


The current Land Use Regulations (not the Decree) require the Minister to get approval from landowners for their land to be put into the Land Bank. But after land is put in the Land Bank, landowners have NO say after ceding their land to the Frank Bank.


The Otago University study of the land laws in Fiji makes this clear:


Once designated (ie put in the Land Bank) the LOU (Land owning Unit) has no say in how the land is used. The LOU has effectively granted the Director of Lands carte blanche to lease their land. There is no requirement that the LOU consent to a specific lease. There is no duty of consultation, although it might be possible to fashion one out of the mandatory consideration that all leases “take into consideration… the best interest of the land owners”. For reasons that will be discussed later, such a duty would be largely worthless because it is unenforceable. The LOU is also unable to exercise any legal rights to use or occupy the land while designated because it must be “free of all encumbrances”.


Landowners effectively give the land to the Government.


The Otago study says “The LOU regime all but extinguishes the ability of the LOU to legally enforce its rights against the State or sub-lessor. A private law action that purports to “challenge or question” almost any matter under the Land Use Decree (including the decisions of officials, the terms and conditions of a lease, or the cancellation of a lease) must fail because of the extensive privative clause in s 15(1) of the Decree.”


The Otago study concludes this ban on appeals to courts appears to be “ironclad”. But it is not only landowners whose rights are taken away. Tenants are also at the mercy of the Bainimarama state.
 

“The consequence is that neither the LOU (landowners) nor the sub-lessees (tenants) have access to the courts to enforce their legal rights in regards to the leases they have entered into under the LOU regime. The State holds all the power in the lease relationships: it has a vast array of powers and can exercise these with impunity because there is no judicial oversight.”


The Otago study concludes that if the courts deny access “the LOU will have, in practical terms, alienated its land as it cannot enforce its rights of reversion. The sub-lessee is effectively in the position of a tenant-at-will because the State could simply elect to terminate because, despite having a registered lease, enforcing it would require questioning the “validity of the cancellation”. The rights of the LOU and the sub-lessor are not functionally enforceable property rights in the ordinary sense of the term.
 
Fiji's Ruling Duo with Design to Alienate Fijian land

To the landowners who say they have done well under the Land Bank and support it, I say yes, you have received your 30 pieces of silver, but what about everybody else. Do you understand what power over land has been taken by Bainimarama? And in future, if he chooses, he can change the Land Use Regulations and landowner approval will no longer be needed for land to be placed in the Land Bank. A change to Land Use Regulations does not need the approval of Parliament. The Land Use Decree gives the Minister the power to make new laws without the approval of Parliament.


Bainimarama has been careful not to use all the powers he has taken because he doesn’t want landowners (or tenants) to find out how much power he has over their land.


Part of the new system is payment of “Premiums” when leases are signed. So far Bainimarama has paid these to the landowners, but he is not required to do this.


The Otago study says: “The State is not obliged to pass on the “premium” which the sub-lessee is required to pay up-front before the lease is granted but appears to have done so in practice.”


So for the time being Bainimarama is passing on premiums for 99 years leases, but he is not required to do this by law. This is the law and there is a clear plan behind it – to build power for Bainimarama to entrench himself in government.

The study looks at the whole issue of reforming land laws in Fiji. It is critical of the old NLTB system under previous governments, but it is equally very clear that the Land Use Decree gives Bainimarama the power to take native land on whatever terms he likes. The fact that he’s used this power very carefully up to now shows only that he is stealthy. His only aim is to entrench his dictatorship.


The facts about this are easy to check. The 2012 study by Matthew Dodd for the Faculty of Law at University of Otago can be accessed via the link below.





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1 comment:

Anonymous said...

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