(2011) JLP 64: 65-90
Sue Farran
Abstract
As in other parts of the world, islands in the south Pacific region experienced British colonial administration accompanied by the introduction of non-customary land laws and policies. In some cases colonial administrators took land which they deemed to be uncultivated or lying ‘waste and idle’ and claimed it for the Crown or later, the state. In other cases they reshaped customary institutions and structures in efforts to acknowledge local indigenous polities but at the same time understand them on their own terms. On independence, and in the years just prior to and after independence in many countries, land that had been alienated to foreigners was restored to indigenous people, but the slate could not be wiped entirely clean of the colonial legacy. Indeed few countries rejected the colonial systems of laws and courts, so that even today, introduced laws and dispute resolution forums remain relevant and influential.
Alongside shifts from rural residency to urbanisation, from subsistence agriculture to cash-cropping and waged labour, there are other pressures both internal and external, to commercialise and capitalize land and its resources. There are demands for registration and demarcation of customary land interests, for the simplification of complex kinship rules which determine land rights, for greater individualization of land rather than communal access and multiple rights, and for the establishment of certainty through final court decisions rather than negotiated settlements which may be revisited and renegotiated. For some, both from within and without Pacific island countries, customary land tenure is seen as an obstacle to economic development, for others it is seen as essential for maintaining social stability and security and for ensuring the equitable distribution of resources in states where governance is weak and public provision virtually non-existent.
Drawing on legal and anthropological research, and focussing on the island countries of Melanesia, this paper looks at contemporary examples of how governments and individuals are negotiating the space between the two systems of customary land tenure and introduced land law highlighting how plural systems offer scope for developing coping strategies and the development of hybrid legal approaches.