Vanuatu Review of National Land Legislation, Policy and ... - AusAID

December 2001 were signed by the Minister (233 leases). 20 This is a recipefor disaster. Not only is it highly unsafe to enter into a lease if the landownership is disputed, the custom owners are excluded from anyinvolvement in the decision-making over the lease, the rents and otherbenefits from it, and enforcement of the lease conditions 21 .3. Custom owners. The fundamental land tenure issues left unresolved by theConstitution in 1980 are still unresolved, 27 years later. In particular, theuncertainty over the nature of custom ownership – is it by a customary group,or by individuals – remains to this day, and undermines all lease negotiations.On Efate, the existence of land trusts and other bodies which arerepresentative of the custom owners has mitigated the problem, 22 but in allother cases there must be serious doubt over whether all the people withinterests in the land being leased are being properly informed and involved inthe negotiations. All too often, it seems, one or two senior males claim to be“the custom owners”, and so entitled to negotiate the leases and monopoliseall the benefits themselves.4. Urban lands. The same uncertainties surround the status of public lands intowns, and the entitlements of the former customary owners. While theissues have remained dormant for some years, they may not remain sopermanently. Similarly, there is still doubt over whether indigenous citizenscan own freehold titles.5. The Government’s role. The balance between the freedom of custom ownersto deal directly with their land and the Government’s responsibility to protectthem from unfair dealings, as well as to protect the community’s and thenational interest, is not being managed satisfactorily. The nature of theGovernment’s responsibility in land dealings, and how it is exercised, needsto be spelt out in greater detail. Here again, the inappropriateness of theMinister signing leases on the custom owners behalf, while having statutoryduties to protect their interests, is demonstrated. There is an unavoidableconflict of interest.6. Enforcement of lease conditions. A similar problem arises over theenforcement of lease conditions. Whose responsibility is it? Who has thecapacity to oversee performance of lease conditions, and take any necessaryenforcement action? If the custom owners lack this capacity, then thelikelihood of non-compliance is increased.7. Terms and conditions of leases. There are many issues over the terms andconditions of leases. Thus –20 “Myth or Reality: Case study of land tenure in Efate, Vanuatu”, Sue Farran, 2002, p.2.21 A number of Ombudsman’s reports deal with abuse of the Minister’s power to enter intoleases.22 The same research shows that 55% of the rural leases on Efate up to December 2001 (587leases) were signed by such representative bodies.19