Fragmenting Land and the Laws that Govern It

Abstract

In 1980 the Constitution of the newly independent Republic of Vanuatu returned all land to the custom owners and their descendants and declared that “[t]he rules of custom shall form the basis of ownership and use of land” (Articles 73 and 74). What the Constitution did not state was what these rules were or should be, leaving it to Parliament to implement a national land law. As a result of Parliamentary inaction there is a plurality of rules of custom which govern customary land tenure, varying from place to place and island to island in a country of over eighty islands. Traditionally these rules are unwritten, but increasingly they are being recorded, in the reports of courts and tribunals, in published research and in the policy documents of councils of chiefs. These are processes which in themselves are re-shaping the rules of custom but also providing a partial codification of customary practices. However, these are not the only rules which regulate land transactions. Introduced laws and post-independence national legislation are also important and exist alongside customary law. Different interests over the same land may therefore be regulated by different legal frameworks. Moreover the boundaries between these are shifting as land is used and developed in different ways to meet changing social and economic demands and pressures, both internal and external. There is therefore a pluralism of legal sources; a pluralism of values and concepts; and a pluralism of interests which in combination present substantial challenges for the articulation of a national land policy or the development a national land law.