Land Tenure Center Newsletter
Number 80, Fall 2000, p. 1-7, 10

Coups, Constitutions, and Confusion in Fiji

by Spike Boydell
boydell_S@usp.ac.fj

Land tenure systems are social definitions. They are constructed to accommodate the particular way of life of the people, laws, and the physical environment, and are subject to change and transmitted from generation to generation with efficient modification. This view is reinforced by Marchak (1998) who argues that tenure systems exist only as long as society is willing to enforce them. If enforcement is missing, a tenure system ceases to exist. Colonial whites, in building empires for their respective sovereigns, forced the tenure systems of 19th-century Europe onto traditional commonhold and clan structures of the developing world. This paper investigates the reaction against this Western order within developing nations by using Fiji as a case study of a contemporary flashpoint that differs from the reaction to colonial "order" elsewhere in the Pacific and in Africa. Four related issues underlie the threat to the freehold and leasehold type of tenure systems that are most comprehensible to the developed world: destabilization of democratic order; arguments that favor the maintenance, and indeed restoration, of feudal aristocracies; "new millennium chiefs," i.e., successful capitalists who hold power without the benefit of chiefly blood; and grassroots people power.

It is interesting to observe the reaction of the "democratic" developed countries toward efforts to restore autonomous traditional systems. When indigenous people of developing nations are put down, or seemingly disadvantaged under first-world order, it is acceptable (and diplomatically correct) to proffer aid for humanitarian, health, education and business development. The inevitable result of improved education and communications is that the hitherto disadvantaged indigenous populace becomes a little wiser. This paper questions whether arrogation of land and reaffirmation of native tenure systems moderated by contemporary feudal values is really as outrageous as first-world perceptions would have us believe.

Fiji’s land tenure patterns and indigenous ownership

Land tenure patterns in Fiji were fixed at the time of cession to Britain in 1874. According to Ward (1965) one of the first acts of the Colonial Government was to issue a notice to the effect that "no sale, transfer or assignment of land" would be recognized by the government until a decision had been made on the settlement of existing titles. After the signing of the Deed of Cession, rights of Fijians to the land were guaranteed and rights of Europeans and other foreigners who had acquired land in a bona fide manner prior to cession were also recognized. In 1874, there were many foreign occupiers and claimants to large areas of Fijian land. These claims mostly originated through dealings with chiefs, traders, and settlers. At that time, some 400,000 acres of land were registered as freehold. This area has expanded to 415,000 acres and the intention to seek compensation for this land "taken" during colonial rule was raised in 1999 by the then-leader of the predominantly indigenous opposition party to the Chaudhry government (Kubuabola 1999).

Current land tenure patterns and polices were based on the views of Gordon, the first substantive Governor of Fiji. He set up a framework, establishing the Lands Claims Commission, under which the validity of European claims were determined and the protection of native forms of tenure systems was recognized. Among other issues, the mataqali (village grouping/clan) was accepted as the main landowning unit.

In Fiji, 83% of the land is owned in trust by indigenous Fijians. The rest is state land and freehold. As a result, indigenous Fijians remain a proud race and have retained strong spiritual and family connections with the land (Boydell and Reddy 2000). This is in stark contrast to landownership in Australia and New Zealand where indigenous owners were dispossessed through colonization.

The Native Lands Trust Board (NLTB) administers indigenous land that is not required for occupation by members of the mataqali; indeed, the NLTB has authority to lease the land without the consent of the clan. Prasad (1998) argues that the NLTB has a monopoly and a monopsony as far as the supply of land to non-Fijians is concerned. This is not strictly true in respect of the monopoly given the vakavanua referred to later. Moreover, Prasad is spurious in arguing that there is a monopsony, given that there is more than one potential buyer, or potential tenant, for most of the land on offer. Some of the excess land historically has been used for growing sugar cane and other crops, commonly by descendants of indentured Indians (Indo-Fijians), and more recently coastal land has been used for tourism schemes. Ownership is retained by the native landholders and the agricultural land is administered under the provisions of the Agricultural Landlord and Tenant Act (ALTA 1976). Agricultural land was held on a 30-year lease under the provisions of ALTA with rental set at 6% of unimproved capital value—a figure that is impossible to quantify in today’s largely improved market. There are some 13,140 ALTA leases expiring from 1997-2028 with the most (3,549) expiring 1999-2000 (Fiji 1999).

Under the 1999 coalition government headed by Mahendra Chaudhry, the first Indo-Fijian Prime Minister, some indigenous owners sought to regain and retain their land. Compensation for lease expiry (a controversial and unprecedented action) at $28,000 per agricultural lease was proffered to tenants who did not want to be resettled (as the government had seen resettlement of these tenants as its responsibility). This windfall compensation offered by the government was controversial since it represented, in most cases, significantly more in dollar terms than the accumulated total received by the landholders over the last 30 or 50 years of the lease.

It is important to understand the nature of native ownership of land in Fiji. Are indigenous Fijians disadvantaged compared to Indo-Fijians under an ALTA lease? As cited above, 83% of land in Fiji is owned by indigenous Fijians. But in what context is land really owned by indigenous Fijians? It is not owned in the same way as one would acknowledge ownership of a freehold interest. This land, in reality, is merely held in a group trust. Ordinary Fijians cannot sell it or use it as security for a loan; however, they retain a higher claim over the land for their beneficial use for a home site or an agricultural allotment than their Indo-Fijian counterparts (Boydell and Reddy 2000). Moreover, the land that is not required for such purposes may be rented out to others under the guidance of the indigenous statutorily-retained property manager, the NLTB. It must be remembered that this native land is communal. It is not owned at an individual level and can never be considered as personal property, for there is no individual legal title to it. In fact, it can be argued that leasehold title, be it on native, crown, or freehold land is more commercially tradable and accepted as a security, the rationale being that there is a defined legal title for such interests. Natives are just as free to own non-native land as anyone else, be it freehold or leasehold. There is a line of argument that would claim that natives are advantaged in so far as they are the only group who can hold all land types.

The ALTA leases represent a form of quasi-social security affording tenants a small-scale subsistence income and a very cheap home site on a 10-acre lot, on average. The main crop under the predominantly Indo-Fijian-held ALTA leases is sugar cane. Two-acre farms under, say, ginger and chilies, can produce a higher return than a 10-acre farm under cane. Within that context the desire to extend cane leases for another 30 (or more) years is potentially very short sighted, given the time limitations on sugar subsidies to Fiji under the Lomé Convention and associated sugar protocol (based on the staged decline of sugar price subsidy until 2010). It might be more prudent for a farmer to use the challenge of lease expiry to relinquish the sugar contract and adapt to alternative, more profitable, agricultural production. It is generally acknowledged that the small-scale cane farm lot size of around 10 acres is noncompetitive on a sugar industry level. There is a possibility that economies of scale in production and pricing could be achieved if farms were combined. But, in such circumstances, the often-generous acreage surrounding the tenant’s homes would be lost in the name of efficiency or development. Moreover, Rukuni (n.d.) argues that the economies of scale in agricultural production are a fallacy. He argues that worldwide evidence supports this and that small farms can be just as economically efficient as larger ones. From the viewpoint of the neighboring indigenous landowners, it is preferable (philosophically and financially at a micro level) to take the land back for their own use and cultivation. The philosophy of life and communalism may preclude viable production on this former cane land. Even if the land were left partly fallow and sporadically planted with some local subsistence root crops such as dalo, cassava or taro, the potential sale value (if ever harvested) at local markets (over and above village consumption) would exceed the nominal return under the existing regulated rental system. However, from a political (or capitalistic) macro viewpoint it is better for the government to retain the land under cane because of the foreign exchange benefits.

It is worth acknowledging that although land tenure in Fiji is codified, the free market illegal or extralegal practices of informal tenancy or vakavanua (meaning "customary" but equating to tenancy at will) are not uncommon (Overton 1987). These are based on tradition in response to the shortcomings of the formal regulated system. The regulated 6% rental level can be well below the vakavanua system, with indications in the sugar belt that the latter can be ten times more than the former.

Reasons for conflict

A catalyst for the events leading up to the May 19th 2000 coup was that the Indo-Fijian led government pressed for a continuance of ALTA, while indigenous Fijian landowners, advised by the NLTB, pressed for more equitable and flexible lease arrangements under the Native Land Trust Act.

There remains a general lack of understanding of the legal nuances of both pieces of legislation, even on the part of some political economists in the academic arena who lack the basic legal training to appreciate that both landlord and tenant have to want to be party to a lease. The government naively pushed for a tenant-driven solution, albeit most landowning groups were prepared to allow a renewal of the lease. Critically, landowners saw a continuance of ALTA as a threat to their ownership. Such is their right since it is their legal prerogative to repossess the land. The Chaudhry government was, in the landowners’ perception, attempting to challenge their rights and autocratically strive for a continuance of the pro-tenant (i.e. pro Indo-Fijian) status quo.

The parallels between land tenure difficulties in the Pacific and Africa are strong. As in Fiji, Africans are tired of being mismanaged, and the common view is that local problems need homegrown solutions (Rukuni n.d.). Rukuni highlights that the institutions of land tenure are firmly established in value systems and grounded in religious, social, political, and cultural philosophies that make them seem both vulnerable and reactionary to outsiders. A similar point was made by the vice-chancellor of the University of the South Pacific in 1969 when introducing a symposium on land tenure:

It is, of course, always useful and helpful to be able to look at what other people have done and the solutions that they have arrived at in regard to legislative and other problems. On the other hand, we must appreciate that land tenure problems are problems to which new answers have to be sought continuously and that the problems of a particular country are the problems of that country alone. A country may have particular problems and particular ways of handling those problems which are best suited to its own physical environment, culture and economy. (Aikman 1969)

In Fiji there is a sense of belonging and interconnectedness between the indigenous Fijian and the land (vanua). In the Fijian language, the Taukei (which is the name taken by the nationalist movement associated with the recent unrest) and kai vanua literally mean "land people" (Walter 1978). The Fijian, like many other indigenous groups, views the land as sacred. Philosophically and spiritually there is a deep-rooted belief in the stewardship of land. It is accepted that the current generation has a responsibility to the land that relates to the spirits of their forefathers along with the expectations of their descendants, in addition to the needs of the current generation.

There is also a view (Lea 1997; Ward 1995) that the perception of tradition or custom is a moving idealism, and is varied and re-created as needed to reinforce and support a particular stance, which we now see manifest as nationalism. The traditional economy has evolved while traditional social and political order is being reinforced and entrenched (Overton 1987). Scarr (1983) stated that there is an inner connection between the land as actual turf and land as a religious symbol for the Fijian. The Christian faith, to which most indigenous Fijians subscribe, places great reverence to the land. One might say there is Methodism in their madness.

Pick a land tenure model

Interestingly, the insularity of society in Fiji gives rise to the belief that land holds a special place in the Pacific. The reality is that land holds a special place in all societies of the world. What varies is the nature of the tenure—and what is important in contemporary society is how that tenure was arrived at. As Hann (1998) observes, a standardized model of private exclusive ownership has now been disseminated to most societies. Western advisers brought this to the former communist societies of Eastern Europe and Asia, merely completing a trend established elsewhere under colonial rule. The Western consultant’s perspective presumably is that the Western system is better than the alternative (feudalism) where ownership is imposed arbitrarily by those in power. This perception is reinforced by those who allege that communal ownership gives rise to the over-exploitation of scarce natural resources. This doesn’t hold true in Fiji, where the communal feudal approach to subsistence farming has supported considerate stewardship of the land resource over the years, allowing for sections of land to lie fallow and recover in order to ensure against overcultivation.

Exploitation and overcultivation is a capitalist (liberal?), rather than feudal, paradigm. Moreover, there is a general shift from individualism to institutionalization with much property ownership, given its monetary worth, now being vested in the hands of large corporations. This returns us to the ideology of feudalism, whereby contemporary capitalist oligopolies have power, and thus ownership and control. There is a dichotomy to be addressed at the level of social justice and the land (Boydell 1999). There are parallels with Godwin’s classic essay on Property written in 1793, some 80 years before Fiji was ceded to the British. Godwin (1890) wrote about the materialistic wants of developing society, questioning if such materialism would be important if one resided on a desert island with no spectators of the economy. While termed political justice, Godwin’s views on the communal benefit derived from property relate closely to the ideology of social justice in the current millennium. Such rational ideologies can be traced back to More’s Utopia and Plato’s Republic.

The preeminence of property within the liberal paradigm is largely a myth (Hann 1998). In all societies the property rights of individuals are subject to both political and legal regulation. Intrinsic to international concern over the current situation affecting land tenure, ownership, and control in Fiji (as well in a country such as Zimbabwe) is a fear that such demonstrations of indigenous authority will spread. The colonization of Fiji occurred significantly later than the colonization of Australia, New Zealand, and the United States. It is therefore a reasonable assertion that Fiji (or even Zimbabwe) is significantly more advanced than these countries dominated by Caucasians who totally repressed the indigenous populations. Indeed it was not until 1992 that the landmark Mabo case overturned the legal edifice that had hitherto denied the indigenous population of Australia title to their "own" land (Mabo v Queensland (No 2) (1992) 175 CLR 1:107 ALR 1).

In Fiji, only a small percentage of land had been alienated, and the bulk had, since white settlement, remained vested in the indigenous community. However, certain prime land (such as the urbanized areas and many tourist resorts) is held in freehold title. There has been an understandable reaction to this and the High Court has acknowledged the right of indigenous landowners to make a Mabo-style claim for land (Ratu Epili Kanakana v Attorney General and NLTB, HBC 0116 of 1999) in the center of Suva, Fiji’s capital city (Marsh 2000).

In dealing with the anthropological essence of land and ownership Hann (1998) refers to the "embeddedness of property." This embeddedness, or preconception, clouds and confuses attitudes to property and landownership. A language whereby ownership and possession may not easily be translated to maintain original comprehension further erodes Western liberal ideals. Does the liberal West see the dominance of indigenous autocracy in Fiji and Zimbabwe as a threat to its non-indigenous democracies? As Gandhi highlighted in respect of democracy: the weakest should have the same opportunity as the strongest. However, no country shows anything but patronizing regard for the weak (Iyer 1973). In Australia, the Prime Minister, John Howard, is yet unable to say "sorry" on behalf of the country for the past mistreatment of the indigenous aboriginal community. Is the issue here mere racism? We know that with racism comes fear—for example, fear that indigenous preeminence in countries such as Fiji and Zimbabwe could inspire the hitherto marginalized indigenous populations of Australia, New Zealand, and the United States to react against their treatment over the years. Another example might be the fear of a reaction against the colonial settler’s arrogation of their land in the name of the Crown over the last 200 years.

At what stage is backlash against colonialism unacceptable? How far back in time is it reasonable to trace colonial alienation of native land? Should it be restricted to 100, 200 or even 500 years? Alienability, the right for property to be transferred to new ownership, was accepted in classical Greece and Rome, whose economies were more market-based than later feudalism. To operate within a market society, Macpherson (1975) argues, some degree of alienability is necessary; a full market society requires it in the highest degree. Alienation, as a transplanted Western ideal, has allowed certain Pacific and African economies to operate in a market society. This causes a fundamental dilemma: certain developing nations want to retain their indigenous rights, including those pertaining to land tenure, while striving to operate within a global economy. At this point feudalism hits capitalism head on. This interesting dichotomy is at odds with the accepted order of things. As West (1975) argues, when Marx and Engels discussed the origins of capitalism, the premise was that capitalism grew out of the ruins of feudalism. Does society know how to react when the order is changed and contemporary feudalism is contrived as a reaction to capitalism?

Ignoring the Constitution

What then is the way forward? It is accepted that land tenure is characterized by a coexistence of customary and statutory rights that need harmonization (DFID 2000). So many countries currently have major land tenure questions. A volatile and unsettled political situation ensues from contests over land within states, between states, and within communities. The result is tenure insecurity, environmental insecurity, and resultant institutional uncertainty. In Fiji such uncertainties caused the unsuccessful putsch led by George Speight on May 19th 2000 and the ensuing successful military coup. The military went on to abrogate the 1997 Constitution—one of the most liberal, multi-ethnic and well-drafted constitutions the world has seen. Outside reaction to this abrogation, which saw the end of democracy in Fiji, came in the form of condemnation from Australia, New Zealand, and, to a lesser degree, the governments of the European Union, United Kingdom, and United States.

Two popular rationales were proffered to justify the abrogation of the 1997 Constitution: the old favorites of ethnicity and land. The 1997 Constitution strove to address nationalistic issues, and clearly defined social justice considerations in respect of land and ethnicity, but as Marsh (2000) observes, the detailed provisions of the Constitution were of little or no interest to the coup leaders. He even doubts if George Speight, his supporters, or many of the well-educated people in the community of Fiji had read it or had interest in the contents. From an ethnocentric perspective, many thought the political administration was being led in an autocratic and pro Indo-Fijian manner; but it was also possible to view the administration as positively capitalist and outstandingly liberal in that the constitution was so egalitarian as to allow a non-indigenous Indo-Fijian to be Prime Minister.

After the coup, this small island (former) paradise was the focus of the world media. The attempted arrogation of freehold island resorts by contesting landowners was the final straw for the already damaged tourism industry. The nation was held hostage along with the parliamentarians who endured 56 days of captivity. Democracy was perceived as a "foreign flower" by the former Prime Minister and leader of the 1987 coup, Sitiveni Rabuka. Issues of ethnicity were passed over as the primacy of indigenous Fijians was confirmed. Attention returned to land issues as a justification, arguing support for the unfounded fear (hyped by the media) that land and tradition would be lost if action were not taken to protect them—despite the fact that both were ensured by the 1997 Constitution.

For several weeks the nation ground to a halt. Shops closed early and schools remained closed while business and government attempted a façade of operation while waiting for normalcy to return. Old grudges were raised over land and the nation was plunged into darkness for five weeks as landowners at Monasavu, the site of the dam supplying the main island’s (Viti Levu) hydroelectric scheme, held out for their compensation, which was more than 10 years overdue. This compensation related to the use of the dam catchment area, which in typical Fiji style had been overlooked at the time of original acquisition and subsequently left unresolved. This was a grassroots reaction, lawless and grossly inconvenient for the rest of the country but not unjustified. The only mechanism that continued to run throughout the crisis was the rumor mill. The current output speaks daily of anticipated coups by other players in the revolution as the interim administration (rather than conventional government, for they have no opposition) starts to investigate and point fingers at participants (both overt and covert) in the events of recent months.

Conclusion

At the start of this paper four related issues were introduced. The first, questioning the destabilization of democratic order, has been addressed in so far as democracy no longer exists in Fiji; it has become the "foreign flower" of Rabuka. The second issue relates to arguments in favor of the maintenance, and indeed restoration, of feudal aristocracies. This takes us back to tradition. To quote Wilson:

In communities there are little players and big players, and the biggest players of all are the keystone species. As the name implies, the removal of a keystone species causes a substantial part of the community to change drastically. (1993, 167)

This is to question relationships within keystone species in land: are the freeholders or the nebulous landowners the keystone of land tenure? Politics is probably the keystone from a contemporary perspective and follows an interrelationship with power as purported by Gandhi:

Gandhian indictment of modern civilisation represents a moral and spiritual view that is seen even more clearly in his attitude to politics. The sickness of our "satanic" civilisation is closely related to the soullessness of present day politics. In a materialistic society, regardless of religion or humanistic professions, the state and the entire system of government becomes corrupt. All political institutions are instruments for the pursuit of power, whether directly or by the indirect manner in which they maintain and foster the ownership of property and provide the psychological incentives that are connected with power. Man has always desired power and ownership of property gives that power and posthumous benefit." (Iyer 1973, 39)

It is this affinity to power and property that has ensured chiefly support for a continuance of orthodoxy. This has been reinforced by the NLTB system of rent distribution which has made many chiefs relatively wealthy (Ward 1995). Prior to 1999, when the NLTB management fee was reduced to 20% gross revenue, the income distribution had been as follows: 25% to the NLTB, 5% to vanua head, 10% to yavusa head, 15% to mataqali head, 45% to ordinary registered villagers (both resident and nonresident).

This system ensured that a third of the income from land has ended up in the pockets of a limited number of chiefs with whom political power has been vested. Those with traditional high chiefly status have the means (power and money) to maintain personal and communal vested interest (Overton 1987). As Ward (1995) notes, this elite group has furthered its wealth and power betwixt the communal ideal and economic development in the commercial arena. The term "traditional" implies permanency, resistance to change, and accordance with established custom (Walter 1978). It is, however, a fallacy to suggest that traditional society is not amenable to innovative change, as can be witnessed by the chiefly ability to embrace commerce and economic development.

However, dysfunction is required to permit transition. Coups would qualify from a global perspective as being both transitional and dysfunctional. This leads to the third issue: a reaction to the "unacceptable order" of chiefly control, which is the sub-revolution of contemporary "new millennium" chiefs. This backlash against the orthodoxy is action by successful capitalists who hold power without the benefit of chiefly blood. Generally speaking this includes amongst others the scapegoat George Speight, his financiers, who reportedly include some of the key businessmen (gender but not ethnically specific) of Fiji, together with influential members of the police and military. This group, which includes Indo-Fijians and non-Fijians, has increased its control of the country as capitalism has become king within the urbanized areas and tourist belt. It pays but lip service to tradition.

The fourth point is the people-power reaction at a grassroots level. This includes the humble villagers who, through the influence of tourism, capitalism, and the media, have become wiser, more educated, and thus more dissatisfied than their obedient and unquestioningly loyal forebears. In a soft reaction, this group votes with its feet and becomes part of the urban drift in search of low-end employment and a questionably better life in the metropolitan areas. The break from the orthodoxy of quasi-feudal village life leads to a dilution of the fundamental loyalty that the high chiefs seek to perpetuate. In many instances the urban dwellers are first generation, but the soft reaction group will continue to lose physical, if not spiritual, connectivity with their "village." The harsh reaction is manifest in those villagers who have taken the law into their own hands to arrogate freehold land and public installations, albeit temporarily. Their enduring mantra is that Fijian land ownership is an indivisible part of the state and cannot be challenged. Overton (1987) observed that the same apprehension was conspicuous in the 1980s. Fijians want to reclaim land they feel is lost to them and which would provide for their future expansion. If they had read the 1997 Constitution, they could have reassured themselves that such primacy has never been in question.

Prasad (1998) suggested that solving the problem of property rights and the constitution may promote long-term sustainable economic growth in Fiji. This paper has argued that there may not be anything intrinsically wrong with property rights (land tenure) or the constitution within the physical environment, culture, and economy that is Fiji. What is wrong is the prevailing confusion and lack of understanding amid the wider populace that has resulted in the abrogation of the constitution and the arrogation of land in Fiji. It is all too apparent that abrogation, arrogation, and a strengthening of indigenous rights serve to touch a jarring nerve of insecurity and uncertainty in the bigger colonies where underlying indigenous issues are yet to be addressed.

References

Dr. Boydell is Head of the Department of Land Management and Development in the School of Social and Economic Development, University of the South Pacific, Suva, Fiji. A version of this paper was presented at "Cutting Edge 2000," a real estate research conference held at the RICS Research Foundation. The views represented in this paper are those of the author and do not necessarily reflect those of the University of the South Pacific.

Copyright © 2000 by Land Tenure Center and Board of Regents, University of Wisconsin. All rights reserved.
Readers may make verbatim copies of this document for noncommercial purposes by any means, provided that this copyright notice appears on all such copies.

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