IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0557 OF 2004

BETWEEN:

LAISA RAWALE
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
NATIVE LAND & FISHERIES COMMISSION
DEFENDANTS

Mr. S. Valenitabua for the Plaintiff
Ms L. Vakatale for the Defendant
Ms Rakuita with Ms Lord (joined party)

JUDGMENT

The issue before me is not only a novel one but also of great significance to the defendant and to owners of native land in general. The issue is which persons or body of persons is entitled to the rent moneys collected by NLTB from land owned by extinct mataqalis.

FACTS:

The facts are not in dispute. Yavusa Matasawa originally comprised of five mataqalis. Three of these mataqalis are now extinct. All the three mataqalis owned land in Labasa. There is rental income from the land.

The two surviving mataqalis are first, Mataqali Batinikula which has twenty-nine (29) members and secondly Mataqali Qatiotio which has six (6) members. The plaintiff who is a member of Mataqali Batinikula seeks that the rent money from the land of the three extinct mataqalis be distributed in proportion to numbers of persons so Mataqali Batinikula will receive 29 shares out of thirty-five and Qatiotio 6 shares out of thirty-five. She does not want a 50/50 division between the two surviving mataqalis as her mataqali stands to gain if division is done on per capita rather than on mataqali basis.

The word “proprietary unit” appears in Regulation 11 of Native Land Trust (Leases and Licences) Regulations. It is not defined either in the Regulations or the Act or Native Lands Act.

Regulation 11(1) reads:

“After deduction of any sums in accordance with section 14 of the Act, the balance of any monies received by the Board by way of rents and premiums in respect of native land shall be distributed by the Board as follows:-

(a)	to the proprietary unit, seventy percent;
(b)	to the turaga ni mataqali, fifteen percent;
(c)	to the turaga ni yavusa, ten percent; and
(d)	to the turaga i taukei, five percent.”

Mr. Valenitabua submits that proprietary unit means “native owners” and in the present case the proprietary unit is Yavusa Matasawa.

The word “proprietary unit” occurs again in subsection 3 of the Regulation which reads:

“Where there is more than one division or subdivision of the people within the same proprietary unit, the turaga of the same status shall share equally the sum payable to them under paragraph (1) irrespective of whether or not any other sum is payable to any of them under that paragraph in their capacity as turaga of any other division or subdivision within such proprietary unit.”

This subsection suggested that there can be a division or a subdivision of people within a proprietary unit.

So a proprietary unit cannot refer to individual human being or individual members as an individual member cannot be divided or subdivided into other components. This is the basis on which the plaintiff’s argument is based in counting of heads.

This Regulation is there to assist the Board in administering and distributing lease moneys which it collects by way of rent, royalties and premiums. When the NLTB issues a lease be it registered lease, an approval notice to lease or an Instrument of Tenancy it names the landowning unit or mataqali on the lease document. When it issues a rent receipt again on the rent receipt the name of the mataqali is there. The Board however does not keep a register of numbers of individual members in every mataqali in Fiji. That task is the responsibility of the Native Lands Commission, a statutory body set up under the Native Land Act Cap 133. It would be a hugely onerous task as there would be additions by birth and subtractions by death in such numbers. Even the plaintiff made an error in numbers of her mataqali. She deposed the number was 24 but in fact it transpired later it was 29. There would always be a possibility of fluctuations in numbers of mataqali and if numbers of individuals were made the basis of division of proceeds, it would create uncertainty. It would mean the Board having to conduct a counting exercise on each payment out date which is normally twice a year. It could also expose the Board to litigation if for one reason or another, its calculation of members was subsequently found to be incorrect.

Accordingly I am of the view that the proper division of moneys ought to be the 50/50 basis so the 50 percent of the rental and other income derived from the lands of the extinct mataqali is paid to Mataqali Batinikula and 50 percent to Mataqali Qatiotio.

[ Jiten Singh ]
JUDGE

At Suva
22nd June 2005