managing&customary&land&in&fiji&–is&the ......nov 27, 2013 ·...

Managing Customary Land in Fiji – is the current trust structure fit for purpose?

Ulai Baya Honorary Associate, UTS: Asia-‐Pacific Centre for Complex Real Property Rights

& co-‐founder, Customary Land SoluIons

Spike Boydell FoundaIon Director, UTS: Asia-‐Pacific Centre for Complex Real Property Rights

Professor of the Built Environment UTS & co-‐founder, Customary Land SoluIons

Asia-Pacific Centre for Complex Real Property Rights

FIVEM Annual Conference 2013 29-30 November 2013

Intercontinental Fiji


The mission of the Asia Pacific Centre for Complex Real Property Rights (APCCRPR) is to:

Specialise in land tenure and real property rights research, advocacy, public policy development and consultancy.

Our remit includes land management, poliIcal economy, and conflict minimisaIon issues relaIng to: •  Property rights in land and buildings; •  PoliIcs and Economy of Emerging Property Rights (e.g. water, carbon, biota); •  Urban Planning and CompensaIon; •  Leasehold issues, including expiraIon and renewal; •  InsItuIonal arrangements and land trusts; •  The financial management of inalienable customary land in Australia and the South Pacific; and •  The challenge of Common Property in urbanised areas.

Asia-Pacific Centre for Complex Real Property Rights Introduction

Introduction

Background

Efficiency

Plurality

Informal arrangements (Vakavanua)

Capacity & Operational Matters

The Way Forward



Photo: Waisea Nasokai, Source http://www.fijisun.com.fj/wp-content/uploads/2013/11/TLTB-workshop-8-300x159.jpg

No land politics: PM

Commodore Bainimarama warns TLTB to improve landowner services

November 6, 2013

http://www.fijisun.com.fj/?p=185855

"I must say that when I have been around Fiji there have been instances when potential tenants who want to lease land at the right value, TLTB staff have been very lethargic," Commodore Bainimarama said in his welcome speech at yesterday's TLTB annual strategic corporation planning workshop on the Coral Coast. http://www.fijitimes.com/story.aspx?id=250301

Dawn Gibson, Wednesday, November 06, 2013


•  Purpose of Trust – Legal idenIty on behalf of beneficiaries – Professional Advice / RepresentaIon

•  Examples – Vanuatu = Ifira and Mele trusts – Solomon Islands = Aluta Basin (trial) – PNG = Incorporate Land Groups (LGI Act 1974) – Fiji = NLTB, now the i Taukei Land Trust Board

•  valuaIon, legal, financial, accounIng, lease management, negoIaIon / representaIon and spaIal capacity

•  representaIon rather than advice


MILDA REPRESENTS A PLATFORM FOR A VOCAL REGIONAL DEFENCE OF CUSTOMARY LAND, AND AN OPPOSITION TO THE CORPORATE LAND GRAB AGENDA.

Indigenous people, not Australians, should determine Vanuatu's future Read more:http://www.smh.com.au/comment/indigenous-people-not-australians-should-determine-vanuatus-future-20131117-2xotx.html#ixzz2lKeZUoXv

Joel Simon, November 17, 2013

Its principal aim is to assist Indigenous Peoples in Melanesia maintain control over their land, sea, water, air and resources through continued use of their customary tenure systems. We assert that the customary land systems are the basis of life and community in Melanesia.

http://mildamelanesia.org/

Asia-Pacific Centre for Complex Real Property Rights B

ackground

Deed of Cession 1874 (clause 4)

Lands Commission

1876

NaIve Lands Commission

1878 NaIve Lands

Ordinance 1905

NaIve Land Trust Act 1940 (NLTB est.1946)

NaIve Fisheries Commission

1941

Schedule A & B (reverted to NLTB 2000)

Amendment to NLA & NLTA

2010

Amendment to iTLTB 2011

Asia-Pacific Centre for Complex Real Property Rights E

fficiency

•  NegoIaIng aspiraIons of customary landowners with expectaIons of investors – Agriculture (ALTA / NLTA) – Tourism development – Forestry – ExtracIve industries

•  Leases and Licensing RegulaIons – Determines payment structure / distribuIon – Revenue for iTLTB (management fee)

Asia-Pacific Centre for Complex Real Property Rights E

fficiency

Courtesy of iTLTB

Asia-Pacific Centre for Complex Real Property Rights Form

er Income D

istribution

Vanua -‐ headed by Turaga-‐i-‐Taukei [5%]

Yavusa (tribe) – headed by Turaga-‐ni-‐qali [10%]

Mataqali (Clan) – headed by Turaga –ni-‐ mataqali [15%]

i Tokatoka (smaller clan) – Turaga-‐ni-‐tokatoka & General

Membership [70%]

Income distribution after iTLTB management fee [currently 15%]

Asia-Pacific Centre for Complex Real Property Rights P

lurality

Custom / Tradi>on Western materialism Is that possible for

compensa>ng customary landowners?

Plurality of Registers

High Context society

Rights

ObligaIons

RestricIons

Formal

Informal

Concrete

Categorical

Hybrid?

Low Context society

IntergeneraIonal Equity Focus on current generaIon

Emphasis on the land owning group over

oneself

Emphasis on the self over others

Perpetual interest Five year Ime-‐span (unIl next elecIon)

Emphasis on informal insItuIonal arrangements

Emphasis on formal insItuIonal arrangements

Determinants of Value

Source: Boydell, S. & Baya, U. (2012) 'Resource Development on Customary Land - Managing the Complexity through a Pro-Development Compensation Solution', Annual World Bank Conference on Land and Poverty 2012, The World Bank, Washington DC, April 2012

Asia-Pacific Centre for Complex Real Property Rights Inform

al Arrangem

ents

– Vakavanua – informal arrangements – Results from deficiencies of formal insItuIonal arrangements

– Risks

… and the Governments response:

The Land Bank

or should this be a ‘shop window’ for iTLTB?

Asia-Pacific Centre for Complex Real Property Rights C

apacity & O

perational Matters

•  Lease Length – Appropriate length to recoup capital outlay

•  Basis of Rental – Currently UCV – hypotheIcal construct –  Ignores willing lessor / willing lessee market

•  Ownership of Improvements – Confused, but need to vest in landowner not tenant (c.f. Vanuatu Land Leases Act s.41(i))

•  Lease Management – ProacIve management of rent reviews, debtors, lease renewals (and negoIaIng premiums)


apacity & O

perational Matters

•  ValuaIon Approaches – Currently weak and someImes confused – Need to look more closely at marriage of customary landowner and tenants interests (i.e. synergisIc value)

– Need to conform to InternaIonal ValuaIon Standard

– Need to have same capacity and skill sets as tenants (who may have internaIonal professional advice)

VALUE $

TIME

VALUE OF TENANTS INTEREST

VALUE OF TENANTS INTEREST CAN BECOME A NEGATIVE VALUE IF THE LANDLORD HAS NO FUNDS

TO COMPENSATE FOR IMPROVEMENTS AND TENANT

CHOOSES TO CLEAR SITE

25 50 75

GROUND RENT


apacity & O

perational Matters

VALUE $

TIME

ORIGINAL GROUND RENT

VALUE OF TENANTS INTEREST –

INCREASES AS NEW LEASE

LEASE EXTENDED (THROUGH SURRENDER

AND RENEWAL – OR SOME FORM OF

ENFRANCHISEMENT)

VALUE OF LANDLORDS MARKET BASED RENTAL (FOR MARRIAGE OF LAND AND BUILDING INTERESTS)

25 50 75


apacity & O

perational Matters

Asia-Pacific Centre for Complex Real Property Rights The W

ay Forward

Range of lease terms fit for for

purpose

Frequency and Quantum of Rent

Review

Clear & Explicit policies on

Improvements

Accommodate ancillaries (carbon / heritage /

environment)

NegoIate terms that match

aspiraIons (prior informed consent)

Transdisciplinary skill sets

Use market value rather than UCV

Engage InternaIonal ValuaIon Standards


oncluding Rem

arks

•  Customary land is complex •  Fiji is fortunate in that it has a clear genealogy

•  NLTB / iTLTB has protected customary interests

•  CriIcs say it has not adapted to societal change

•  However, it is currently reviewing its processes and operaIon

•  OpImism

Asia-Pacific Centre for Complex Real Property Rights O

ur Recom

mendation

But, we think the iTLTB needs more help, so we have set out our recommendaIons for reform at:

http://customarylandsolutions.com/leaseholds/leaseholds-sample-scope-of-work/

Managing Customary Land in Fiji – is the current trust structure fit for purpose?

Ulai Baya Honorary Associate, UTS: Asia-‐Pacific Centre for Complex Real Property Rights

& co-‐founder, Customary Land SoluIons

Spike Boydell FoundaIon Director, UTS: Asia-‐Pacific Centre for Complex Real Property Rights

Professor of the Built Environment UTS & co-‐founder, Customary Land SoluIons


FIVEM Annual Conference 2013 29-30 November 2013

Intercontinental Fiji

managing&customary&land&in&fiji&–is&the ......nov 27, 2013 ·...

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