THE prime minister is to be commended for exercising his authority as Head of Government to decide that Fiji is to retain its independence flag.
As reported in The Fiji Times, a public opinion poll had shown that a clear majority of people favoured the retention of our Fiji independence flag.
I believe that for many in this majority, their support was not out of pure sentimentalism about our historical past. For the indigenous iTaukei and Rotuman people, there are actually very good reasons for supporting the presence in our flag of Britain’s union jack.
Today, the iTaukei and Rotumans still own 91 per cent of all lands in Fiji and have long enjoyed the right to self-determination, ie their governance at the district and provincial level through their own iTaukei and Rotuman affairs administration. The foundation for this was laid all the way back to Britain’s protective policies for them from the outset of British colonial rule in Fiji. Let me explain especially to inform our younger generation.
When Britain accepted the cession of sovereignty over Fiji by Ratu Seru Cakobau and other high chiefs on October 10 1874, it reciprocated in two ways.
Firstly, under the English common law doctrine of native title, Britain recognised the continuing collective rights and interests of indigenous Fijians to their communal lands according to their customs, usages and tradition.
Secondly, Britain recognised the authority of the ceding chiefs on the understanding that this chiefly authority would be exercised in accordance with the laws of the colony.
Two very important developments then followed when Britain’s first resident Governor, Sir Arthur Gordon arrived in Fiji.
Firstly, the Governor in Council established a system of native administration with district councils under a buli and provincial councils under a roko. Native regulations were introduced dealing with village and provincial administration. This was the forerunner of today’s iTaukei and Rotuman local government administration under the iTaukei Affairs Act and Rotuma Affairs Act.
So, long before international law under the 1989 ILO Convention 169 Concerning Indigenous and Tribal Peoples and the 2007 UN General Resolution on the Rights of Indigenous Peoples recognised the right of indigenous peoples to self-determination within their home State, the iTaukei and Rotumans had exercised this right from the outset of British colonial rule in Fiji.
Secondly, with Sir Arthur Gordon’s support and encouragement the Council of Chiefs held a series of meetings, culminating in their meeting at Bua in December 1879 at which they agreed to a common standard of customary tenure for all native lands. The agreed components were:
* That there shall be but one custom for all native lands in Fiji;
* That the “true and real ownership” of all native lands would vest in the mataqali alone;
* That it is neither possible nor lawful for any mataqali to alienate its land;
* That all men should be registered in their mataqali together with their lands;
* That the register should be approved by district (tikina) and provincial (yasana) councils; and
* That the register (Vola ni Kawa Bula) shall be proof “for all time” as to the status and possession of customary lands held by each mataqali in each province.
For Sir Arthur Gordon, the most important feature of native land tenure was the inalienability of land. This was for a very important pragmatic consideration:
” — if the living generation … had the power to alienate their land on the receipt of a consideration, their children, who had received no share of that consideration, would on growing up be destitute of any land whereon to plant, and any place wherein they had a right to live”. (Dr Peter France (1969): The Charter of the Land, p125).
He took a further step to protect iTaukei customary lands. The Governor in Council codified the recognition of customary lands in Native Land Ordinances. For example, section 2 of the Native Lands Ordinance 1892 stated: “The tenure of lands belonging to the native Fijian as derived from their ancestors and evidenced by tradition and usage shall be the legal tenure thereof.”
This is the forerunner to Section 3 in today’s iTaukei Lands Act, which states: “Native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition.”
The British colonial administration could have done what the European settler dominated legislatures did in Australia and New Zealand following the proclamation of British sovereignty there in 1788 and 1840 respectively, and that was to enact laws with plain and clear intention to extinguish native titles over designated parcels of land and convert them to freehold titles.
Instead, immediately following his arrival in Fiji, Sir Arthur Gordon on instructions from the British Colonial Office in London placed an embargo on all land sales to European planters and traders and established in 1879 a Land Claims Commission to investigate the bona fide status of sales of native lands by certain chiefs without the consent of their mataqali members.
So, overall thanks to Britain’s protective native land policies less than seven per cent of all lands in Fiji became freehold land while 91 per cent have remained as the customary possession of the indigenous iTaukei and Rotumans.
Today, the protection of the rights of the indigenous iTaukei and Rotumans to their customary lands and natural resources is provided under sections 26 (8) (g), 28 and 30 of the 2013 Constitution. Because these protective provisions are in the Bill of Rights, Parliament, the executive government, the judiciary and public agencies of the State are under constitutional obligation to safeguard these rights.
The entrenchment of protective provisions in the Bill of Rights is also far superior to the protective provisions in the 1970 and 1997 Constitutions. They have become part of the basic structure of the 2013 Constitution and as such the courts as the guardian of the Constitution are under obligation to protect this entrenched protection from any encroachment even by the legislature.
* Jioji Kotobalavu is a graduate in modern history and law. The above article is based on his own academic research and opinion.
