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The Language of Land: Look Before You Leap (Article) [2000] JSPL 22; (2000) 4 Journal of South Pacific Law

THE LANGUAGE OF LAND: LOOK BEFORE YOU LEAP

By Kenneth Brown*

INTRODUCTION

A browse through both the Solomon Islands Law Reports and judgments available on USP’s Web Site drives home the dominance of land as a central motif of litigation. Litigation over land is also commonplace in Vanuatu but formally is less visible as the courts have recently declined to adjudicate in land matters due to lack of resources.¹ Nevertheless the Vanuatu Law Reports accommodate a significant number of land related judgments.

Equally striking, from an inspection of the judgments, is the persistent inclination to employ common law terminology, often directly or with little modification, to customary land disputation. Much of the scholarship on customary land in the Solomon Islands and Vanuatu has understandably concentrated on pressing practical issues. The return of alienated land, the setting up of procedures and fora to resolve customary land disputes, and the exploitation of the economic value of the land are but three of the most obvious.²

What has been all too often overlooked in the debate is the fundamental issue of terminology. Administrators and judicial officials alike have been so steeped in the concepts that underpin western patterns of landholding that it has become second nature for them to employ the western terminology that describes those concepts. It therefore comes as no surprise that the structure of legislation and the tenor of court judgments are dominated by the use of a language and phraseology culled from hierarchal systems of land tenure structured to buttress the rights of the individual. Doubt must be expressed that those charged with making and overseeing policy on customary land are alert to the dilemma.

Attention here will centre on Solomon Islands and Vanuatu but the thrust of the arguments pertain in equal measure to all Pacific jurisdictions where issues over customary tenure remain controversial. The theme at the heart of this article is that without a keen awareness of the pitfalls of adopting alien idioms to describe local landholding, politicians, land administrators and lawyers are unlikely to untangle the present confusion that governs land policy and its development. Furthermore land litigation will continue to over-monopolise scarce judicial resources.

The article seeks to pinpoint the areas of common confusion over terminology and briefly offer some thoughts on the nature of customary landholding. Unless those involved in decision making – at whatever level - on land are alive to the principles underpinning indigenous landholding then it is futile to hope for a cohesive and sensible resolution of the multiple dilemmas surrounding land policy. Whilst the theme centres on the theoretical aspects, some of the practical problems emanating from customary land will be outlined. An intended follow up essay will scrutinise selected judgements from Solomon Islands and Vanuatu. These judgments have often unthinkingly and maybe unwittingly, employed western terminology. In some cases judges have erroneously adopted willy-nilly western legislation as Acts of general application. This has bequeathed a catalogue of case law on land that is disordered. Passing reference will be made to some of these decisions here. The general problems that they illustrate, and in some instances have engendered and compounded, will only be touched on here. The planned later article will undertake a more minute examination of them.

LAND AT THE HUB OF SOCIETY

The allocation, use and distribution of land loom large as a question of vital concern in all societies. Allied to this concern is the issue of landholding and tenure. Whilst physical observation of how land is held and utilised may not pose intractable problems the theoretical basis of land use and tenure in a society engenders a complex galaxy of uncertainty.

In 1963 Bohannen commenting³ on the woeful lack of literature on land in Africa said:

We are still abysmally ignorant of African land practices.... The reason for this state of affairs is close at hand: there exists no good analysis of the concepts habitually used in land tenure studies, and certainly no detailed critique of their applicability to cross-cultural study.

Thinking about land has been and remains largely ethnocentric.

Several decades on, this observation could properly be adapted for and applied to Melanesia.

The axiom ‘an Englishman's home is his castle’ is the resounding declaration of an individual right to property ownership coupled with the steadfast determination to assert exclusive possession over, and vigorously defend if necessary, the personal incidents of ownership. The statement eloquently encapsulates much of the underlying bedrock of common law land tenure.

No similar lay aphorism neatly embodies the essence of customary landholding. The Melanesian avowal by Dr (later Sir) Gideon Zoloveke that:

In effect land was an ancestral trust committed to the living for the benefit of themselves and generations yet unborn.⁴

expresses most crisply the intrinsic nature of traditional land holding in Melanesia. He expands by adding:

Land thus was the most valuable heritage of the whole community, and could not be lightly parted with. This is based on the belief that the departed ancestors superintended the earthly affairs of their living descendants, protecting them from disasters and ensuing their welfare, but demanding in return strict compliance with time-honoured ethical prescriptions. Reverence for ancestral spirits was a cardinal point of traditional faith and such reverence dictated the preservation of land which the living shared with the dead.⁵

This many-faceted nature of affinity to the land is, in a Vanuatu context, well-stated by Bonnemaison⁶ thus:

In Vanuatu custom land is not only the site of production but it is the mainstay of a vision of the world. Land is at the heart of the operation of the cultural system. It represents life, materially and spiritually. A man is tied to his territory by affinity and consanguinity. The clan is its land, just as the clan is its ancestors... The clan's land, its ancestors and its men are a single indissoluble reality - a fact which must be borne in mind when it is said that Melanesian land is inalienable.

These passages eloquently emphasise the spiritual element in customary land conceptualisation. Land has also significance economically as an agency of survival through agricultural production, and politically as the area binding together a kin group or alliance of families.

TERMINOLOGY IN RELATION TO CUSTOMARY LAND

Caution is axiomatically advisable in any debate of a cross-cultural character. In a discourse on customary land it is imperative. Common law property rules are complex, intricate and highly developed. They reflect the dominance of individual property rights in capitalistic systems. The ownership of a distinct ascertainable interest is fundamental to the contractual dealings upon which so much of western society is based. Customary law is more concerned with status. Gluckman adroitly expressed this in the context of property declaring that customary law emphasises ‘not so much the rights of persons over things, as obligations owed between persons in respect of things.’⁷

Many words, 'ownership' furnishing a prime example, have no a priori meaning but are cultural constructs. The term 'ownership', one familiar to common law cultures and employed there both technically and in the vernacular, is culturally specific.⁸ Another concept regularly imported inappropriately is that of the 'trust.'⁹ This has been applied to describe the relationship of the traditional chief in respect of his status as a landholder vis-a-vis his adherents. The thesis proceeds on the theory that the allodial title to the land rests in the group or tribe and that the chief's role is that of a fiduciary trustee.¹⁰ This explains his theoretical inability to dispose of any interest in the land and why dealings with chiefs that purported to alienate customary land in early colonial days were disclaimed and vigorously denounced by later generations. Even the use of less technical property terms like 'interest' or 'right' in relation to customary land may pose some danger if applied thoughtlessly in any legalistic sense.

Intense debate on terminology reveals three schools of belief.¹¹ The first proposes that western terms can be adapted with facility to customary land tenure. This line of thought has been discredited by academics but its tenets are recurrently visited in some judicial quarters.

The second theory propounds that traditional land tenure should be elucidated in indigenous 'folk' terminology.¹² Local concepts should be expounded and analysed meticulously and the apt vernacular terms pertinent to them should be abstracted and then utilised instead of the English equivalents. This proves invaluable in relation to the exposition of the meaning of concepts within a society and how they operate in that society. However even Bohannen accepted that the approach he advocated lacked an essential quality in anthropological methodology in that comparison with cognate concepts and phenomena in other cultures was not possible without adopting a more culture free terminology.

Gluckman advocated a comparative approach avoiding western legal terms in their technical sense but endeavouring to match local terms to wider universal concepts. He contended that concepts such as 'law' and 'ownership' could successfully be transculturally described by the use of local expressions.¹³ The problem inherent in its adoption is that indigenous words may be used when they have no exact correspondence in western language. Thus they are misapplied.¹⁴

The third way advanced by Allott advocated the use of a non-legal non-technical English vocabulary.¹⁵ He sought to avoid the difficulties deep-rooted in the employment of conceptual terms like 'ownership' by seeking out universal ideas in reference to land tenure. He considered it universal that land usage in any society would involve the exercise of rights. This necessarily involved interests in land and pinpointing the extent and subject matter of the interest.¹⁶ The exercise of these rights supposed that the rights were 'controllable' in that their exercise depended on who had the authority to decide who could benefit from the use of the land and in what circumstances they could do so. Ascertaining who has the authority to determine use of land and who has the benefit of the right to use the land and how they could do so thus became central.

This departure from any notion of the concept of ownership is vital to an accurate understanding of customary land law. The ownership model so dominant in the common law system proceeds on the assumption that rights are stratified hierarchically.¹⁷ At the apex is the dominant absolute owner and lesser rights are carved out from this absolute interest.¹⁸ To grasp the essence of customary land the ownership paradigm must be mentally discarded. Analysis should proceed from observation of the concrete social practice.

The drawbacks of resorting to quasi-common law terms in relation to customary land are self-evident. Firstly they derive from the western ownership model and thus conjure up ideas of a stratified system of rights that may not exist in customary law. Terms such as ‘interest’ ‘right’ and ‘trust’ may have non-legal, non-technical and vernacular meanings but when applied in relation to land will trigger ideas and concepts embedded by years of training in the mind of lawyers and administrators. We have at best scant knowledge of customary concepts and alluding to them in even quasi-common law terms – which after all express western abstract ideas - may be misguided and misleading. This is because customary concepts may be so radically different from those of the common law that even the use of a watered-down common law terminology will not capture, and may indeed disfigure, the reality of the customary concept.

An example from the realm of family law illustrates this danger. The colonial authorities adopted various English language terms of a non-legal nature such as ‘brideprice’ ‘bridewealth’ ‘marriage payments’ to describe the practice of some exchange of goods, livestock or the like being made upon, or ancillary to, a customary marriage. Of course vernacular terms for the institution existed but these were incomprehensible to the western mind. Consequently a recasting of them in fresh terminology was essential for the administration to contend with what they observed. This remoulding of the tradition in alien terms evokes in the western mind the lucid picture of wife buying and demotes the institution to the level of a commercial transaction. Undoubtedly the adoption of imported terminology has misconstrued and distorted the true nature of the institution.¹⁹

This summary of the terminology/concept debate is condensed and bears the shortcomings of any abridgement in that compression often results in a lack of according the discussion the depth and breadth it may merit.²⁰ Awareness of the varied standpoints is required for any examination of the case-law material. Decisions on disputation concerning customary law have been bedevilled by the lack of familiarity of judges with the problems of translating and transplanting English ideas and concepts to societies bound together by different norms.²¹ Only by remaining alert to this danger can the pitfalls be avoided.

The planned later article will hand out brickbats for the uninformed reflexive espousal of common law terms and ideas so it is fitting to hand a bouquet to at least one judge. In Lilo and Another v Ghomo²² Daly CJ, demonstrating acute local awareness of the lurking dangers observed:

Before I turn to these grounds I must say something generally about the difficulties that have arisen. They arise, in my view, from what is always a problem in dealing with Customary Land Cases in modern Solomon Islands. That problem is how can one express customary concepts in the English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, that is the rules of common law and equity. The result is sometimes perfectly satisfactory in that the received legal concept and the Solomon Islands custom concept interact to give the expressions a new meaning which is apt to the Solomon Islands context.