Pg	Description	Year
19	Figure 1 (Photograph) Two examples of kastom tapu supporting species protection, Santo	2003
133	Figure 2 (Photograph) Visitors entrance signage to Vatthe Conservation Area, Santo	2004
134	Figure 3 (Photograph) School holidays Environment Camp held at Vatthe Conservation Area, Santo	2004
136	Table J Bowen “The Status of Avifauna at Loru Protected Area, Santo” Bird Conservation International	1997
141	Figure 4 (Photograph) Various Conservation Area Members	2004
142	Figure 5 (Photograph) Chief Kaleb Kalsekau addressing students at Loru Protected Area, Santo	2004
151	Figure 6 (Photograph) Sanma Taskforce Krab Kokonas Awareness Poster 2004 – 2007	2004

WORD COUNT = 31,617 words

(Excluding the title page, table of contents, declaration of originality, all headings and sub-headings, quotations, footnotes, appendix,

acknowledgments and bibliography)

DECLARATION OF ORIGINALITY

I, DONNA MARIE LLEWELL, declare that this research project is my own work and that, to the best of my knowledge, it contains no material previously published, or substantially overlapping with material submitted for the award of any other degree at any institution, except where due acknowledgment and footnotes are given within the text of this paper and acknowledgment in the bibliography.

SIGNED: DATED: 13 November 2006

DONNA MARIE LLEWELL

PART 1

1.1 INTRODUCTION

The formal laws of the Republic of Vanuatu that impact on environmental protection are presently in a state of flux and development to reflect international laws and the practice of developed countries by incorporating sustainable development principles. The laws affecting natural and physical resources are generally sectorial in approach, with new environmental framework legislation enacted in 2003.

Against that background, customary law, customary ownership and use of natural and physical resources of Vanuatu are central and important influences at community levels for environmental management and protection. Other factors such as the isolation of communities, lack of capacity and resources of central Government agencies with environmental functions, levels of ecological awareness and education, changing social dynamics and attitudes, western and market influences within communities, and the level of community respect for customary authority – all influence decisions relating to the use and protection of resources.

On the other hand, these factors also provide a foundation to argue that there is a need for greater recognition and integration of customary matters within the formal laws of Vanuatu to enhance environmental management. Some commentators consider that customary law, and more particularly customary land ownership disputes, are effectively operating as a brake on the sustainable development of natural and physical resources in Vanuatu. The premise being that the complexities of kastom[1] provide de facto protection for the environment.

From my practical experience and legal volunteer work in Vanuatu[2], it is my view that there are questions as to how well the formal laws and customary laws are co-existing to provide an integrated approach to environmental protection. This is particularly so in relation to the challenges and reality of environmental enforcement at the community level. The topics of this dissertation have been chosen in the hope of providing a platform for further legal discussion that could provide greater flexibility and integration between law and kastom which is suitable for Vanuatu and by which enhanced environmental outcomes may be realised for future generations.

The main objectives of my research and dissertation are to evaluate the integration of customary laws and formal laws affecting the environment; to provide examples by way of three case studies and assess the scope of integration of the two legal regimes; and to consider the appropriateness of environmental enforcement in Vanuatu.

This dissertation is presented in five parts, as follows:

· Part 1 includes the executive summary, this introductory section, methodology and definitions of used in this paper, and background on Vanuatu and its environmental challenges;

· Part 2 provides the legal analysis in relation to the dissertation topic. This includes a profile of the place and importance of kastom in Vanuatu communities, the legislative foundations and recognition of kastom, and relevant international environmental obligations that impact on Vanuatu’s environmental regime. Part 2 also includes subsections with a sector analysis in relation to land, forests, fisheries, water and biodiversity (flora and fauna). Each of subsection includes background information and values associated with the particular natural resource, assessment of the principal legislative provisions which contribute to environmental protection for that resource, customary considerations (which may or may not be integrated into the legislation), and observations concerning the co-existence of the two legal systems;

· Part 3 of this paper outlines three case studies of environmental protection initiatives that I have worked alongside during my volunteer legal position in the northern island of Vanuatu, Espiritu Santo. This information is intended to give some practical context against which to evaluate the dissertation topic - the integration of customary law and formal laws of Vanuatu to enhance environmental protection. The case studies include two land based protected area initiatives – Vatthe Conservation Area situated in Big Bay and Loru Protected Area situated in East Santo. The third case study is a species protection initiative for coconut crab which presently operates in the Sanma Province[3]. Each case study demonstrates that there are different management mechanisms and levels of legal recognition and/or customary protection which contribute to environmental protection of the natural resources; and

· Part 4 provides an overall assessment of the integration of Vanuatu’s customary laws and its formal laws to enhance environmental protection. Drawing on the information and experiences contained in the case studies outlined in part 3, this part also considers environmental enforcement issues and offers my conclusions for improving the integration of kastom and formal laws to achieve sustainable environmental outcomes.

1.2 VANUATU AND ENVIRONMENTAL CONTEXT

Vanuatu comprises an exclusive economic zone of 710,000 sq km with over 80 volcanic islands situated in the cyclone-prone, tropical south-western Pacific Ocean. Approximately 75% of the nation’s total 12,190 sq km land area is under natural but frequently disturbed forest. Today, with a human population nearing 200,000, the population growth rate is approximately 2.6%. Nearly 82% of the population live in small rural and coastal villages in a predominately subsistence economy. [4]

Following occupation by British, Australian, and French planters and traders in the 19^th century, European colonial rivalry resulted in the formation of a unique colonial administration, the joint Anglo-French Condominium of the New Hebrides which was established in 1906. The nation gained independence in 1980 as well as the republic name of Vanuatu.

In earlier days, the islands exported substantial amounts of kauri and sandalwood. Logging companies continue to operate today, but the greater forest loss comes from clearing for agricultural and pastoral use. The economy rests on its agricultural exports, tourism, and a finance / tax haven status. In terms of Pacific Island standards, Vanuatu’s flora and fauna does not have a great endemic biodiversity.

Widespread environmental degradation is not yet severe, but potentially serious environmental problems threaten. Vanuatu has a prime opportunity to take preventative action before remedial environmental action is required.

The main environmental challenges for the country include:

· The impact of the customary land-tenure system on environmental management;

· Localised population pressures and a high national population growth rate;

· Damage and exploitation of ocean and reef resources;

· Sea-level rise, soil erosion, and loss of forest and associated biodiversity;

· Falling soil fertility in the subsistence sector;

· Pasture degradation;

· Water pollution;

· Waste management and disposal;

· Rapid urbanisation; and

· Depletion of specific species (i.e. trochus shells, sea cucumber, coconut crab, and mangroves).

1.3 METHODOLOGY AND DEFINITIONS

In terms of research methodology for this dissertation topic, I have undertaken both academic and empirical research. This approach provides a foundation for the assessment of theory as against the practical reality for environment protection and the integration of formal and customary laws.

I am grateful to the School Research Committee of the School of Law, University of South Pacific for a research grant which allowed me to visit the Emalus Campus for my academic research. This research trip meant I was physically present in Port Vila to personally meet with different individuals and organisations that contributed information for my research and appreciation of the dissertation topic. In particular, various Government departments who administer legislation which affect environmental issues - to obtain clarification of legal provisions and obligations, as well as to appreciate the practical challenges associated with implementation of the environmental legislation and interrelationships with customary issues.

My empirical research has involved interviews with individuals and/or management committees from the Vatthe Conservation Area, Loru Protected Area and the Sanma Krab Kokonas Taskforce.[5] My research was also drawn from the accumulation of interactions, discussions and the provision of legal and/or technical advice to conservation members of WTEC during the course of my legal volunteer work in Vanuatu.[6] The specific communities and names of individuals that contributed in my research are acknowledged at the end of this paper.

The principal statutes of Vanuatu that impact on environmental issues and are the subject of analysis and/or comment within this paper include the following:

· Alienated Land Act 1982 [Cap 145];

· Animal Importation and Quarantine Act 1988 [Cap 201];

· Constitution of the Republic of Vanuatu 1980;

· Courts Act 1980 [Cap 122] (repealed by Judicial Services and Courts Act 2000);

· Customary Land Tribunal Act [No. 7 of 2001];

· Decentralization and Local Government Regions Act [No. 1 of 1994];

· Environmental Management and Conservation Act [No. 12 of 2002];

· Fisheries Act [No. 37 of 1982];

· Fisheries Act [No. 55 of 2005];

· Forestry Act 1982 [Cap 147];

· Forestry Act [No. 26 of 2001];

· Forestry Rights Registration and Timber Harvest Guarantee Act [No.28 of 2000];

· Import of Plants Act 1964 [Cap 34];

· Island Courts Act 1983 [Cap 167];

· Land Leases Act 1984 [Cap 163];

· Land Reform Act 1980 [Cap 123];

· Land Reform (Amendment Act) [No. 35 of 2000];

· Lands Referee Act 1983 [ Cap 148];

· Prevention of Spread of Noxious Weeds Act 1966 [Cap 44];

· Public Health Act [No. 22 of 1994];

· Water Resource Management Act [No. 9 of 2002]; and

· Wild Bird (Protection) Act 1962 [Cap 30].

The three case studies outlined in this paper concern protected areas (i.e. of land and/or the marine environment) and an indigenous species which are located within one main island of Vanuatu, Espiritu Santo. Although the case studies are real situations – the limitation is that they do not necessarily reflect standards or examples that operate across the whole chain of the islands of Vanuatu.

In the course of researching for this dissertation topic, some constraints were experienced. At this point in time, the developing common law and judicial decisions of Vanuatu concerning environmental matters and/or the interface between kastom and the environment were non-existent. My investigations with the office of the Public Prosecutor also revealed that there have been limited proceedings in the Courts concerning environmental enforcement.

I have drawn on definitions developed by others and most commonly referred to in the literature concerning the environment, sustainability and customary or traditional issues. The following definitions apply in relation to this paper:

In a pioneering study of marine tenure in the Marovo Lagoon in the Soloman Islands, Hviding developed the term “customary marine tenure” in which:

“Customary” refers to a system that emerges from firmly traditional roots and has continuous and meaningful links with the past as it adapts to handling contemporary issues;

“Marine” refers to the system as dealing with coral reefs, lagoon, coast and open sea and including islands and islets contained in this overall seascape; and

“Tenure” refers to a social process of interacting activities concerning control over territory, access to resources and regulation of their exploitation.[7]

“Customary ownership and use” mean those rules of ownership and land use which have evolved by practice or custom at the village level and are generally accepted in the community as customary law.[8]

“Conservation ethic” means an awareness of one’s ability to over harvest or otherwise damage one’s natural resources coupled with a commitment to reduce or eliminate the problem.[9]

“Environment” refers to the interconnectedness of ecosystems, and includes the natural, cultural and human dimension (which arguably extends to social and economic considerations) and means:

“…the components of the earth and includes all or any of the following:

(a) land and water;

(b) layers of the atmosphere;

(c) all organic and inorganic matter and living organisms;

(d) the interacting natural, cultural and human systems that include components referred to in paragraphs (a) to (c).”[10]

“Kastom” refers to the Vanuatu Bislama spelling of the word “custom” which incorporates cultural and traditional systems, behaviour and established usage or practices for sustaining life, people, communities and the environment.[11]

“Protection” means the act of protecting or the condition of being protected; and “Protect” means to defend from trouble, harm etc.[12]

“Sustainable development” refers to the process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.”[13]

PART 2

2.1 PROFILE OF KASTOM IN VANUATU COMMUNITIES

Vanuatu is perhaps one of the most diverse countries of the Pacific region. The islands’ diversity in terms of the natural and physical environment is also reflected in the variety of communities, languages and culture that has evolved. The local reference to traditional or customary law and practices is “kastom” which also means the way of life. Therefore, kastom essentially provides the foundation for leadership, social organisation, behavioural expectations, political and economic organisation, decision-making and cultural practices within a community. Kastom not only relates to practices, but also the beliefs of people. The inclusion of rules or protocols under kastom also shapes such things as the relationships between genders, the relationships between peoples, and the relationships between people and their environment.

“Traditional practices, as reflected in the customary law, are also of immense potential importance in the management of natural resources in Vanuatu, especially (but not exclusively) in connection with the preservation and management of protected areas. In fact, although there are only a handful of protected areas officially designated as such under the appropriate legislation, there are throughout the islands many thousands of sites which are preserved by the custom-owners, by virtue of their sacred or cultic nature or because of the presence on those sites of trees, plants, minerals or other items of cultural or traditional significance. The custom-owners have a long experience and tradition of sound and sustainable management of these sites and their obvious qualifications as site managers should not be discounted in evolving a strategy for natural resource management in the Republic nor in ensuring the effective implementation of such a strategy.”[14]

It is impossible to describe every facet of life, systems and customary rules that operate amongst the diverse communities of Vanuatu. Kastom may vary from island to island and between areas and/or villages within the same island. Some customary principles may not change dramatically over long periods of time. However, it is generally accepted that kastom is not static, but that it continually evolves to accommodate different or new circumstances.

Prior to the influence of western religion, people worshipped ancestors and spirits believed to be part and parcel of living obligations. Kastom was passed orally from ancestors, from generation to generation, and thereby was considered sacred and to be observed and respected. As well, there were practices and beliefs commonly referred to as sorcery and “black magic”.

There are two central tenants of kastom which influence, dictate or modify the behaviour of an individual and/or a community:

· Tambu / Taboo – where a prohibition is put in place forbidding access to certain places, resources or activities for the well-being of the community. Arguably, the use of tambu / taboo could have been an early form of sustainable resource management. Breach of tambu / taboo is considered a serious offence.

· Mana – wherein every object is endowed with the sacred spirit of life, life force or soul. Mana is also reflected in the quality of strength, leadership, inventiveness and special power/s residing in people thereby commanding respect and reverence.

An overview of the importance of kastom in Vanuatu communities would not be complete without reference to the pivotal role played by Chiefs’ within the society. There appears to be a wide range of functions and powers exercised by Chiefs’ at the community levels across the country. However, in general terms they represent the focal point for leadership and the custodian of kastom that operates within communities (including the assignment of rights, exercise of customary authority and enforcement, ceremonial and/or traditional functions, and maintaining peace and civil organisation).

In relation to kastom exercised and integral to the traditional or customary resource management practices within Vanuatu, a workshop concerning community based conservation activities in Vanuatu[15] has helpfully identified that there are both direct and indirect techniques which support environmental protection and management. Furthermore, there are three main sub-categories of traditional conservation or resource management practices which have operated for generations and continue to be utilised today as follows:[16]

· Taboo sites – May include places, landscape features, cultural markers and areas considered to be of particular importance, and potentially dangerous if damaged or used inappropriately. Conservation may be a secondary benefit of the protected status of taboo sites;

· Periodic taboo – Where the Chiefs or custom landowners place periodic bans on the use of a resource, area or a particular species. Periodic taboo sites or species may be symbolized by indicators or markers such as a particular leaf (i.e. Cycad (namele), wild canes and Cordyline (nangaria))[17], crossed leaves, stones, sticks or a marker associated with a particular family, clan or tribe. Conservation or resource management is often the primary purpose of periodic taboos; and

· Custom taboo – Specific customary practices vary widely throughout Vanuatu, but this category relates to traditional or custom practices associated with or following certain events (i.e. epidemic illness, deaths, pig killing and grade taking ceremonies). Conservation is generally a secondary benefit of a custom taboo.

By way of specific examples relating to marine ecosystems and the exercise of kastom to support marine resource management in Vanuatu – survey work conducted in 21 villages indicates that between 1993 and 2001, application of traditional and village based marine management measures have more than doubled. The most often used measures include fishing ground closures, taboo for the extraction of a specified species (i.e. turtles, sea cucumber), taboo relating to the use of technology or equipment (i.e. spears, nets, hook size), and implementation of controls concerning size and/or quantity of resources that may be harvested.[18]

Figure 1: Two examples of kastom tabu supporting species protection, Santo (2003)

Right translation – Notice - It is prohibited to kill any fish from this river. If the owners discover a person breaking the prohibition, he / she will be fined 25,000 vatu.

Left translation – No killing mother turtles in this sand beach area.

In my view, Vanuatu (along with many other jurisdictions that have an indigenous society) is presently facing the challenge of defining the relationships between kastom and the components of a modern world. Many legal and other academics are engaged in the debate about codification of kastom into the mainstream legal system. It could be argued that the dominant Westminster style of political organisation and the experience of frequent periods of political instability for the country are influenced (among other things) by the limited integration of kastom at a political level.

The effects of urbanisation and the movement of people away from their customary areas and way of life may contribute to notions that kastom is only relevant to the rural and subsistence communities. On the other hand, kastom appears to be experiencing a renaissance as people and communities redefine their linkages to the past, their living for today, and seek to control their future destiny. However, it can confidently be said of Vanuatu – that kastom and associated traditional and customary practices continue to play an important and dominant role in the use, management and/or protection of resources and the environment.

“In Vanuatu, it is paradoxically the weakness of the state that keeps its islands relatively calm and secure, because of the continuing strength of communicates and customary law… Building a sustainable kind of state may require a deeper linage to tradition….”[19]

2.2 LEGISLATIVE FOUNDATIONS AND RECOGNITION OF KASTOM

The Constitution of the Republic of Vanuatu[20] is hailed as an instrument based on the principle of legal autochthony[21] - in that it emanates from the people for the people. This principle is enunciated in the Preamble of the Constitution. The Preamble is perhaps the first place of formal reference for matters associated with kastom (which is indicated by underlining below):

“We the people of Vanuatu,

Proud of our struggle for freedom,

Determined to safeguard the achievements of this struggle,

Cherishing our ethnic, linguistic and cultural diversity,

Mindful at the same time of our common destiny,

Hereby proclaim the establishment of the united and free Republic of Vanuatu founded on traditional Melanesian values, faith in God, and Christian principles,

And for this purposes give ourselves this Constitution.”

The Republic of Vanuatu is a sovereign democratic state (Article 1). National sovereignty belongs to the people of Vanuatu and is exercised through their elected representatives (Article 4(1)). The constitutional guarantees relating to fundamental rights and duties reflect internationally accepted standards of human rights and are individualistic in nature.[22] There is no express recognition of collective or customary group rights (except what might occur as an incidence of the right to freedoms of assembly, association and worship).

The Constitution of Vanuatu includes statements of fundamental duties of every individual towards him/herself, to his/her descendants and to others.[23] There are two fundamental duties for citizens that are relevant to the environment and this dissertation topic:

· The duty to protect Vanuatu and to safeguard national wealth, resources and the environment in the interests of present and future generations; and

· The duty to support, assist and educate all children and to give them an appreciation of their fundamental rights, duties, national objectives and the culture and customs of Vanuatu.

The fundamental duties place moral and/or ethical obligations on people/s which arguably contribute to a peaceful and civil society. However, except as otherwise provided by law, these fundamental duties are non-justiciable. However, there is a further duty for all public authorities within their respective powers, to encourage compliance with these fundamental duties (Article 8).

Although not empowered with any executive or legislative powers, the Constitution also established the National Council of Chiefs (Malvatumauri). The National Council of Chiefs is composed of custom chiefs elected by their peers sitting in District Councils of Chiefs (Article 29(1)). The Malvatumauri has power to regulate its own procedure (Article 29(2)) and is required to hold at least one meeting per year or further meetings at the request of the Council, Parliament or Government (Article 29(3)). The Council has general competence to discuss all matters concerning custom and tradition and may make recommendations relating to the preservation and promotion of ni-Vanuatu culture and language (Article 30(1)).[24] This competence does not appear to be constitutionally limited to only parliamentary processes. The Council may also be consulted on any question, particularly questions relating to tradition and custom, for any bill before Parliament (Article 30(2)). The Malvatumauri’s advisory capacity has potential to influence the exercise of legislative powers. The Constitution also allows Parliament to further prescribe by law the organisation of the National Council of Chiefs and the role of chiefs at the village, island and district levels (Article 31 - which has been partly legislated under the National Council of Chiefs (Organisation) Act 1985 [Cap 183] only relating to constitution, election and meeting rules and procedure). As well, the Constitution provides that appointments to the Judicial Service Commission will include a representative of the National Council of Chiefs (Article 48(1)).

Within the Custom Policy of the Malvatumauri, the references to environmental management or issues are premised from an ownership and control approach. The policy includes reference to beaches, coral and reefs (Article 10), birds and river life (Article 11) and law and order (land [and sea] boundaries) (Article 15).

In summary, the key points from the custom policy include:

· Enunciation that natural resources associated with land and sea are the property of the village chief;

· That customary permission is required for any person to walk, hunt, extract from the land and sea of the Chief;

· The Chief has full authority to manage and control the human interface with resources and the environment (i.e. he can put in place prohibitions, harvest rights, seasonal management, protection or otherwise);

· There is an obligation for the Chief to make known all custom laws he has put in place with respect to his land and/or sea so that people understand and give honor to such regulation; and

· A person will be subject to sanctions in the case of offending and in accordance with customary authority and tradition.

In relation to governance at a regional level within Vanuatu, the Constitution recognises the importance of decentralisation to enable the people to fully participate in the Government of their Local Government Region. Parliament is given the power to enact legislation to realise that ideal (Article 82). The legislation is to provide for division and administration at regional levels and the membership of local or provincial Government must include representatives of custom chiefs (Article 83).

In terms of the applicable sources of law for Vanuatu, the Constitution sets out the hierarchy of laws in the following manner: [25]

· Constitution of the Republic of Vanuatu is supreme law (Article 2);

· Acts of Parliament of Vanuatu;

· Joint Regulations (i.e. from Condominium governance) in existence on 30 July 1980 which continue in force until otherwise repealed by the Vanuatu Parliament (Article 95(1));

· The Laws of Britain and France in existence on 30 July 1980 which continue in force until otherwise repealed by the Vanuatu Parliament (Article 95(2)) and includes Acts, subsidiary legislation and English common law and equity; and

· Customary Laws of Vanuatu (Article 95(3)).

The last rung in the judicial system of Vanuatu is that of the Island Courts[26] – which operate at a community level with Chiefs appointed to hear cases. The Island Courts have jurisdiction to determine civil and criminal matters where the defendant is ordinarily resident within the territorial jurisdiction of the Court; or where the cause of action is within the territory. Island Courts are specifically empowered to administer the customary law applicable within their respective territory, provided that that customary law is not inconsistent with any written law and is not contrary to justice, morality and good order.[27]

For customary law, the Constitution provides further recognition in that Parliament may provide for the manner of the ascertainment of relevant rules of custom (but not for its application); and may provide for persons knowledgeable in custom to sit and assist the judges of the Supreme Court or the Court of Appeal (Article 51).

The issue of land and subsequent natural resource ownership was a prominent matter that influenced constitutional development and leading to Independence for the Republic of Vanuatu. In comparison to other South Pacific constitutions, Vanuatu took a radical and decisive approach in relation to land within its Constitution. All land in Vanuatu was repatriated and declared to belong to the indigenous custom owners and their descendants (Article 73). The rules of custom form the basis of ownership and use of land (Article 74). Only the indigenous citizens, who have acquired interests in land according to a recognised system of land tenure, have perpetual ownership of their land (Article 75).

After consultation with the National Council of Chiefs, Parliament was required to implement the above mentioned articles by way of national land law and could provide for catergorisation of land, including urban land (Article 76).[28] Parliament is also required to prescribe criteria for the assessment of compensation for persons whose interests maybe adversely affected by legislation under the land chapter of the Constitution (Article 77).[29]

Where there was a dispute concerning the ownership of alienated land, the Government was vested to hold such land until the dispute was resolved (Article 78(1)). The Constitution also obliges the Government to establish the appropriate customary institutions and/or procedures to resolve disputes for the ownership of customary land (Article 78(2)).

To further endorse the principle of maintaining customary land ownership and use within Vanuatu, the Constitution provided that land transactions between ni-Vanuatu and either a non-indigenous person or a non-citizen of Vanuatu required the approval of Government (Article 79(1)). The basis of consent is a type of “cannot be unreasonably withheld” approach.

Under article 78(2), Government consent can be withheld if the transaction is considered prejudicial to the interests of:

· the custom landowner/s;

· the indigenous citizen where he / she is not the custom owner;

· the community where the land is located; or

· the national interests of the Republic of Vanuatu.

Notwithstanding the premise of customary ownership and use under the Constitution, the Government is permitted to own land acquired in the public interest (Article 80). The Government also has powers relating to the acquisition and re-distribution of land to accommodate over-population. In exercising these powers, the Government must give priority to ethnic, linguistic, customary and geographical ties (Article 81).

Overall, the Constitution provides the fundamental legislative recognition of kastom and/or subsequent basis which operates to varying degrees across the spectrum of political, judicial, and legal systems in Vanuatu today. As well, some kastom related articles result in an interface with the legal system and institutions concerning customary ownership and use of land and natural resources and the mechanisms for settling customary disputes.

Separate to the constitutional recognitions in this section 2.2, the specific incidences of legislative incorporation of kastom relevant to this paper are discussed in more detail in the following sections 2.4.1 to 2.4.5 within the context of the component of the environment under discussion.

2.3 INTERNATIONAL ENVIRONMENTAL OBLIGATIONS

In terms of international environmental obligations, Vanuatu is party to a number of international conventions and regional agreements.[30] Ratification of treaties (i.e. international and/or regional conventions or agreements) has relevance to a state Government at both a regional or global level - which may give rise to obligations to develop legislation and/or policy consistent with a particular treaty obligation.

“The effectiveness of international and regional conventions is determined by the extent to which these are ratified and implemented by State parties. Whether States are interested in implementing international obligations depends on a number of factors such as the relevance of obligations to national requirements and the significance of an issue at the international level. For many Pacific Island countries fulfilling international obligations has important resource implications… Conventions can be useful and important in providing an international framework for regional and domestic policies and legislation.”[31]

Having regard to this dissertation topic, the remainder of this section provides a brief summary of the three international and/or regional treaties which have some level of integration or recognition of customary matters with environmental protection relevant in Vanuatu.[32] In the regional context, this also includes the operative regional action strategy plan and priorities for managing the environment in the South Pacific Region.

2.3.1 The Convention on Biological Diversity 1992 (CBD)

This international convention is perhaps the most significant in terms of protection of the environment with direct implications for biodiversity conservation. It includes general obligations on state parties, subject to their ability “as far as possible and as appropriate” to fulfill the provisions of the convention. Specific obligations include the development of national strategies, plans or programmes for the conservation and sustainable use of biological diversity; to undertake identification and monitoring of biological diversity; and parties are required to give particular emphasis to in-situ conservation of biodiversity and the conservation of ecosystems, natural habitats and species in their natural surroundings (Articles 6, 7 & 8).

The CBD contemplates and provides guidelines for the establishment and management of protected areas and other aspects to regulate or manage unique, threatened or important biological diversity. This convention provides the foundation for the promotion of sustainable development within signatory states as well as encouraging the adoption of policies or mechanisms that support that ideal (i.e. environmental impact assessment under article 14).[33]

Another important aspect of the CBD which in practical terms links to the recognition of in-situ conservation and the customary rights of ownership and control of biodiversity, is the protection of genetic resources from inappropriate exploitation and the subsequent mechanisms to provide compensation and/or benefit sharing from biodiversity assets (Article 15). For countries such as Vanuatu and others within the South Pacific Region where the current state of knowledge and potential economic use or values associated with biodiversity is in its infancy, then mechanisms of this nature are likely to be more important in the future for supporting balanced and equitable recognition of the contribution of customary and traditional resources and knowledge (i.e. benefit sharing).

Further articles of the CBD sit well within the South Pacific context for recognising and supporting the integration of customary matters within national environmental management systems.[34] However, there appears to be concern about narrow interpretations of terminology and ranking or characteristics of the extent of indigenousness within a national state system which have the potential to undermine such recognition in the first place.

“If expressions such as “customary use” and “traditional cultural practices” are interpreted as protecting only the past, or existing, uses and practices, this would deny contemporary indigenous self-determination and undermine many of the purposes of the Convention. The relevant focus is indigenous sustainable use and judgments about “traditionality” may impede indigenous cooperation on those issues… A close analysis of the Convention reveals a concern for indigenous rights, but it also presents a serious risk that indigenous peoples will be seen as a “resource” for biological diversity rather than as peoples who hold legal and cultural rights in relation to it… Several Articles in the Convention are primarily concerned with promoting commercial access to genetic resources and promoting the commercial access and transfer of technology. The relevant Articles (15 and 16) make no specific provisions for indigenous peoples and they have to be read in the context of the earlier Articles which recognise indigenous rights and interests.”[35]

2.3.2 The Convention for the Protection of Natural Resources and Environment of the South Pacific 1986

(Originally known as the Noumea Convention, now referred to as the SPREP[36] Convention)

The environmental context at the time of the development of this regional convention was to combat marine pollution, dumping and pollution emergencies, and to encourage regional cooperation on such matters. This convention places broad duties on the contracting parties in relation to the marine and coastal environment. There are also two protocols attached to this convention.[37]

The preamble to the SPREP convention acknowledges the need for parties to take into account the traditions and cultures of the Pacific peoples and there is express recognition of the customs and practices of Pacific peoples.

“The Convention covers pollution from boats, land-based sources, sea-bed activities, air-borne sources, disposal of waste, the storage of toxic and hazardous substances and the testing of nuclear devices. It also covers mining and coastal erosion. It puts an obligation on member countries to take all appropriate measures to protect and preserve rare and fragile ecosystems and depleted, threatened or endangered flora and fauna as well as their habitat in the convention area. They are thus obliged to establish protected areas such as parks and reserves and prohibit or regulate any activity likely to have adverse effect on species, ecosystems or biological processes.”[38]

The SPREP Convention provided the framework and organisational empowerment for regional environmental coordination and support for various projects and/or funding across the Pacific region. In 1992, SPREP became independent of the South Pacific Commission. At the same time, parties to the convention negotiated an agreement to formally establish SPREP as the environmental coordination body for the South Pacific.

The following section 2.3.4 considers in more detail, the relevant parts of the operative regional strategy which recognises the integration of customary and environmental issues for Pacific communities. The regional strategy is SPREP’s expression of goals and objectives for attainment of the organisation’s fundamental purpose.[39]

2.3.3 The Convention for the Conservation of Nature in the South Pacific 1976 (Apia Convention)

This regional convention appears to have limited scope with very broad provisions requiring a state party to generally protect fauna and flora from exploitation; identify indigenous fauna and flora which is threatened with extinction; and prohibit or control the commercial use of resources from national parks. In terms of customary matters, Article 6 of the Apia convention requires states to allow for customary use of areas and species in accordance with traditional cultural practices.

The utility of this convention appears to be seriously questioned within the region due to its lack of comprehensiveness and the low number of signatories to it. As well, it is well argued that the approach within the convention for “national parks” as the form of absolute biodiversity protection – does not sit well in the Pacific region where people and communities are essential elements of the environment and forms of extraction must be contemplated to sustain life, both in terms of traditional and contemporary activities.

2.3.4 Action Strategy for Nature Conservation in the Pacific Islands, 2003 – 2007

This regional action strategy[40] was the major output from the 7th Conference on Nature Conservation and Protected Areas. The conference was convened in July 2002 in Rarotonga - with more than 320 participants from Pacific island Governments, Pacific and international organisations and community groups.[41] It represents the detailed objectives and targets for mainstreaming nature conservation within the Pacific region.[42]

In terms of customary matters, the overall vision and mission statements of the strategy both recognise the rich natural and cultural identity, heritage, culture and traditions of the Pacific peoples. One of the five-year objectives in relation to the environment includes the safeguarding and restoration of threatened species of ecological and cultural significance (Objectives 1.4 and 1.5).

There are two further objectives in the action strategy concerning society and which expressly recognise and set targets for the integration of customary matters with environmental management as follows:

· Objective 3.2 – Recognize and integrate customary structures and processes in natural resource and environmental governance systems;[43] and

· Objective 3.3 – Safeguard and strengthen traditional knowledge and practices.[44]

The regional action strategy provides the strategic direction and targets for SPREP member countries. As noted above, there is important reference and commitment for integrating customary matters within environmental management. The challenge to Vanuatu and other Pacific Island member countries will be the implementation of such targets. The strategy lacks detailed guidance for implementation, but rather is premised on the idea that member countries develop these areas within the context of their own customary systems and practices in relation to their particular environment. Another significant aspect of this regional action strategy is that it will likely influence the direction and distribution of donor and/or development aid funding for the region’s nature conservation efforts.

“A significant problem in the Pacific Island region is the implementation of conventions [and other protocols and/or strategies associated with a convention] which the countries have signed. Barriers to adequate implementation include: lack of human resources in the relevant Government departments, inadequate finance, lack of knowledge of the important benefits that can be derived from becoming a party, and, in some countries, a lack of political will.”[45]

2.4 VANUATU’S ENVIRONMENTAL LEGISLATION AND FRAMEWORK

The first round of environmental related legislation for Vanuatu was inherited from the pre-Independence Condominium Government or enacted in the years shortly following Independence (i.e. early 1980’s).[46] The legislative framework generally had a sectorial and exploitation focus, disparate Governmental agencies, limited integration, limited or no reference to environmental protection or maintaining environmental integrity.

For a ten year period (i.e. late 1980’s to 1990’s) Vanuatu (along with many other Pacific Island nations during this time) received the benefit of international and regional funding and expertise to help:

· Evaluate current environmental frameworks and challenges;

· Identify needs and advance improvements in legislative and other mechanisms to promote sustainable development; and

· Consider how to best give effect and assist with implementation of obligations within the international or regional environmental conventions outlined in section 2.3 of this paper.[47]

One of the significant outcomes from this ten year period has been the progressive change in political commitment, philosophy, the incorporation of new environmental principles and the updating of environment laws for Vanuatu during the early-2000 period to incorporate the concept of sustainable development.

My country study of Vanuatu’s environmental law regime (2004) revealed that Vanuatu’s environmental principles, laws and institutional frameworks (as with the national economy) could at best be described as one in “transition”.[48] There have been considerable advancements in recent years in theory – it is too soon to make a judgment call regarding the practice and achievement of sustainable development of natural and physical resources of Vanuatu.

There is a substantial body of environmental laws and general law in existence which has potential for protecting the environment and wise use of resources. In this regard, the nation is in transition from a sectorial to integrated management approach. However, there are some major gaps and important environmental issues that need to be incorporated into the legislative framework in the near future. Furthermore, compliance and enforcement of environmental laws warrants attention for an effective legal regime.

Like most developing countries, the major challenges are capacity and capability (in terms of human resources, technical, financial and institutional), improving community participation, and continuing programmes of environmental education and awareness for sound resource management. A promising development in the South Pacific region, and for Vanuatu, has been the commitment to and opportunity for environmental legal education through the University of the South Pacific.

Vanuatu has a high degree of international and regional environmental obligations which provide a sound platform for further developments, implementation of sustainability and advancing its environmental law regime. There is satisfactory progress towards the theme of integrating environment and development as articulated in Chapter 8 of Agenda 21.[49] However, there is also prime opportunity for the application of economic instruments and market and other incentives to compliment the laws to achieve long term sustainability for the nation.

Lastly, Vanuatu is perhaps one of the more fortunate nations of the South Pacific region in that environmental degradation is not yet severe and there is the chance to be proactive rather than reactive in promoting integrated environmental management options. A further challenge will be designing mechanisms that have regard to the unique environmental and Melanesian cultural circumstances – perhaps by learning from other countries, but developing in a way that suits Vanuatu’s aspirations, needs and circumstances.

2.4.1 LAND

2.4.1.1 Background

Like most other Pacific Island nations, land and land rights in Vanuatu are of critical importance to cultural, political, social and economic security at local, regional and national levels. For many rural and village communities in Vanuatu, land is the only natural resource base and is an essential element for daily existence.

“For some, with access to markets, it [land] provides a source of income. For a few, its exploitation opens up the possibility of participating in the cash based economy of development. Land is therefore essential both for survival and development. It is also a limited resource increasingly subject to conflicting pressures. The use of land whether for more productive agriculture or for infrastructure, commercial leasing or investment faces a number of difficulties, which if not resolved in the next decade will inevitably lead to a situation where Vanuatu like some of its neighbours, will be facing major problems to which the key is land, its use and management.” [50]

Approximately one quarter of Vanuatu’s total 12,190 sq km land area is mountainous. About 5% of the land area is raised coral terraces; 22% is steeped terraces and plateau which is highly dissected by streams and creeks; relic volcanic cones and volcanic foot slopes occupy 17% of the land area; approximately 7% is taken up by rivers and freshwater lakes; and comparatively lowlands used for agricultural activities takes up 41% of Vanuatu’s land area (Nimoho et al, 1988).[51]

Agriculture accounts for approximately 16% of gross domestic product of Vanuatu. The main agricultural products include copra, beef, cocoa and kava. Subsistence agriculture contributes up to 51% of the total contribution of agriculture to gross domestic product, and that level is steadily rising with an increasing population resulting in pressure for more clearance for subsistence purposes.

Coconut plantations for copra production are very important to Vanuatu’s economy and many families and villages depend on earnings from the production of copra. However, coconut plantations have now been developed to the point of taking up the majority of arable land in the coastal areas, flood plains, plateaus and hillside areas. Coconut may be important economically, but is also proving to be environmentally questionable due to the displacement of resource species from extensive destruction of habitats.[52]

As noted earlier in section 2.2 of this paper, the underpinning foundation of kastom is the basis of ownership and use of land and all land in Vanuatu is declared to belong to indigenous custom owners and their descendants. These two principles were cemented in the Constitution of the Republic.[53] Where there is a dispute concerning the custom ownership of alienated land, the Government was vested to hold such land until the dispute was resolved (Article 78(1)). The Constitution also obliges the Government to establish appropriate customary institutions and/or procedures to resolve disputes for the custom ownership of land (Article 78(2)).

As a result of these constitutional provisions and the emergence of a republic nation, a high proportion of Vanuatu’s land tenure system now operates on the basis of statutory land leases for the developed pastoral, agricultural land and associated commercial enterprise. Therefore, Government’s land department has acted (and continues to act) in a guardianship and fiduciary capacity over lease arrangements until such time as true custom land ownership is determined. In similar vein to forestry leases considered in the next section of this paper, there are standard terms and conditions of leases aimed at protecting certain rights of custom landowners. There are also a number of express provisions and/or implied conditions of leases through land related legislation which govern leasing arrangements and seek to implement fair dealings between land owners and the leasing party.

“The 1980 Constitution of the newly independent Vanuatu fulfilled the political wish to redress the land grabbing of foreigners of the past by giving all land to the indigenous ni-Vanuatu owners and their descendants. Disputes as to who these might be were to be determined by custom. Those outsiders to whom the land had been alienated were given the chance to take out leases of the land provided they were in occupation, and they had a right to remain in occupation until compensated. Where land was neglected or there were disputes over who were the rightful custom owners, then the Minister of Lands or Lands and Natural Resources – had the power to manage the land, including the power to grant leases over it. In the twenty-one years since Independence the number of disputes over land has increased. There is a huge backlog of cases pending before the Courts… Claims to land and rights to land are established by oral history and the claims of kinship links. Little land is accurately surveyed, and boundary markers tend to be natural features of the land such as trees, stones and streams.” [54]

It has only been in recent years that Vanuatu has found the political will and commitment to develop customary forms of dispute resolution envisaged by the Constitution in relation to custom land ownership. Prior to the enactment of the Customary Land Tribunal Act (No. 7 of 2001), land disputants relied on causes of action to the Supreme Court in relation to land matters. This was generally prohibitive in terms of cost and access and in some land cases, the lack of empathy, appreciation and operation of strict evidential rules and processes which were not accommodating of kastom tended to create unsatisfactory outcomes and further perpetuate disputes.

2.4.1.2 Assessment of Legislative Provisions

At the time of Vanuatu’s Independence, approximately 20% of the land area was held under titles deriving from the colonial land registration system rather than tenure based on custom. The constitutional repatriation of land to indigenous custom land owners was clearly incompatible with the continuation of those titles. This problem is addressed under the Land Reform Act 1980 [Cap 123] (LRA) and the Alienated Land Act 1982 [Cap 145] (ALA).[55]

The overall purpose of the LRA is to provide for the implementation of the land chapter of the Constitution. The LRA identifies and classifies “alienators” as any natural or legal person who in relation to any land immediately prior to Independence (i.e. 30 July 1980) held any freehold or perpetual title to any land; a title in succession; a life interest or remainder life interest; or any other form of beneficial interest in any land. The LRA provides that every alienator was entitled to remain on the land until such time as he / she entered into a lease arrangement with the custom landowner; or alternatively until such time as the alienator received payment from the rightful custom landowners for the value of improvements that had been established on the land by the other party.[56]

In the case of occupied land where there was no approved lease or agreement or where custom ownership of the land was / is disputed; or unoccupied land which is the opinion of the Minister is inadequately maintained – the Minister maintains general management and rights of control over the said land. In this regard, the Minister has statutory powers to consent to the substitution of one alienator for another; conduct any transactions or dealings in relation to the land (including the granting of leases in the interests of and on behalf of the custom landowners); and take all necessary measures to conserve and protect the land on behalf of the custom landowners.[57]

The LRA also gives effect to another constitutional recognition that the Government may hold land vested in the Republic as “public land for the benefit of the people of Vanuatu”.[58] The remaining provisions of the LRA are generally administrative and/or procedural in nature concerning the guarantee of registration of leases; rights of entry to land by officials and valuers; establishment of land corporations by the Minister; prohibitions on the use of force and damage or destruction of an alienator’s improvements to the land; regulation powers and offences.

The second legislative regime and mechanisms for giving effect to the reversion of land to custom landowners whilst respecting leasehold interests of non ni-Vanuatu occupiers (i.e. the alienators) are provided under the Alienated Land Act 1982 [Cap 145] (ALA). Whilst the LRA outlined the identification of an alienator, the ALA went on to provide a system for registration of an alienator in accordance with the ALA. Where a person failed to apply for registration within a specified timeframe, then he / she lost all rights associated with the land.[59]

The scheme of the ALA is that once registered, the alienator is then entitled to enter into voluntary and direct negotiations with the custom landowners of the land (i.e. where there was no customary ownership dispute) to formalise his / her leasehold rights and relationship with the land.[60] Once negotiations are concluded, the Minister continues to exercise a supervisory and fiduciary role because such voluntary leases or agreements are subject to the Minister’s final approval. When a lease or agreement is submitted, the Minister has a 21 day period to either approve or decline the lease; or to refer the arrangement for the consideration or opinion of a Land Referee; and the Minister’s approval may be conditional any changes he / she proposes to the lease or agreement being accepted by the custom landowner and the alienator.[61]

The position and jurisdiction of a Land Referee plays an important role under the ALA. The Land Referee Act 1983 [Cap 148] (LRFA) establishes the position of Land Referee who is appointed by the President of Vanuatu on the advice of the Judicial Service Commission. The referee must be a qualified surveyor with experience in the management of land and is empowered to act as an expert on land matters rather than an arbitrator. The Land Referee has jurisdiction to given an expert opinion on the appropriate rental for lease of land; the value of any improvements; can rule on any interpretational question referred to him / her by any party; or give an opinion on any other matter directed to him / her under any other Act or Order.[62]

Under the ALA, the Minister may refer land, lease and/or improvement questions to the Land Referee during any stage of voluntary negotiations and also in the case where undisputed custom landowners have indicated they are not willing to negotiate directly with the alienator.[63] Both the ALA and the LRFA provide that assessment and/or opinion of the Land Referee will be final and binding on the parties and the right of appeal to the Supreme Court is limited to a point of law.[64]

“The leases, which are granted, fall into a number of general categories – tourism development, forestry, mining, agricultural, etc. The terms of each lease in the several categories follow a certain broad pattern, some clauses being almost standard, but particular obligations will be included in each individual lease to take account of specific features of the agreement, the parties, or the property subject to the lease… At first glance, these leases may appear to be merely private agreements between individual parties and to have little relevance to conservation or environmental matters. This view, however understandable, is fundamentally incorrect. The terms and content of the covenants imposed on the parties in such leases can exert an extremely powerful influence on the management of important natural resources and ecosystems. Indeed, in some cases, they may represent the only readily deployable legal mechanism for their protection.” [65]

The Land Leases Act 1984 [Cap 163] (LLA) is the third statute governing leases in relation to land in Vanuatu. The LLA establishes the Lands Records Office and powers associated with the registration of leases against land titles. This Act also sets out provisions relating to mortgages, transfers in relation to leases and/or mortgages and other tenure mechanisms such as easements, restrictive agreements, profits and licences associated with land.[66] The LLA is also the principal statute that governs implied terms and conditions of leases and all matters associated with the enforcement of lease arrangements (i.e. such as surrender, forfeiture and/or determination of leases).

Under section 32 of the LLA, a lease over land cannot be granted by the owner of the land for a term in excess of 75 years; and if granted for a lesser term with rights of renewal, any extension of the lease cannot extend beyond that 75 year period. Subject to an express covenant of the part of the landowner contained in the lease, the lessee cannot dispose of the lease or any part or other interest without the written consent of the lessor (i.e. the landowner). This requirement is noted in the land register and no further dealings with the land or the lease can be registered until written consent of the lessor is produced to the Director of Lands.[67] This is a further example of the statutory protection and supervision of land and lease dealings which operates for the benefit of the landowner. Despite any express provisions contained in a lease, the LLA also provides regular rental reviews of the lease arrangement which may occur by initiation of either party by written notice; or otherwise periodically every 5 years.[68]

The LLA also sets out statutory implied terms and agreements in leases which bind the lessor and/or the lessee. The implied terms generally reflect the types of matters commonly found in modern commercial lease arrangements. There is an absence of any implied terms that have environmental or customary rights implications – those matters are specifically addressed in the lease agreements.[69]

By way of example and with particular reference to the standard terms and conditions of an agricultural lease, the terms which provide forms of environmental protection include the following:

· Covenants by the Lessee – The lessee covenants include (but are not limited to) the following:

a) Not to use the leased land otherwise than for agriculture purposes (including primary processing) and activities which are incidental to the primary agricultural purpose;

b) To farm and manage the leased land in such a manner so as to preserve the fertility of the land in accordance with good soil management practices (which may be determined by the Department of Agriculture from time to time);

c) Not to fell trees, clear, burn off bush or cultivate any leased land within 7 metres from the bank of any river or stream, unless the activity is essential for drainage purposes and only with the prior approval of the Department;

d) Not to clear, burn off, cultivate or permit excessive grazing at the top of hills or within the leased land on slopes exceeding 25 degrees unless prior approval is obtained from the Department;

e) To secure the fencing of stock on the leased land to mitigate stock intrusion into natural and/or other sensitive areas;

f) To keep the leased land free of vermin, refuse and other nuisances;

g) To ensure that no person shall cause or permit the discharge of any rubbish, dirt, effluent or hazardous waste into any watercourse within the leased land;

h) Endeavor to cultivate and plant the land in a productive manner and land suitable for cultivation to be developed at a rate agreeable to the lessor and the Department; and

i) Various stipulations which may relate to the methods, rate and type of development envisaged for the leased land.

The final part of the legislative regime associated with land in Vanuatu, is the dispute resolution mechanisms in relation to customary land ownership. The Customary Land Tribunal Act (No. 7 of 2001) (CLT) received assent on 3 December 2001 and became operative law on 10 December 2001. The CLT provides a very elaborate system based on kastom to resolve customary land disputes. The Act establishes a four-tier system of land tribunals in Vanuatu; provides the administrative and hearing procedures for the land tribunals (including appeal and/or rehearing rights); states the necessary qualifications for members of a land tribunal; and other provisions which attempt to make the new customary land dispute regime workable, fair and to recognise the founding and important role of kastom.[70]

Under the CLT, the islands’ of Vanuatu are divided into custom areas. In the case of larger islands, there may also be divisions as custom sub-areas. The four-tier land tribunal system may therefore include the following hierarchy:

· Village Land Tribunals;

· Custom Sub-Area Land Tribunals;

· Custom Area Land Tribunals; and

· Island Land Tribunals.

The term “customary land” is defined as land owned or occupied, or an interest in land held, by one or more persons in accordance with the rules of custom.[71] The Act also applies to the coastal marine area and waters within the outer edge of any reef adjacent to customary land. The local Government and municipality councils have a statutory role to encourage and assist chiefs to identify boundaries of custom areas and custom sub-areas for the purposes of the CLT and the thereby the establishment of appropriate land tribunal divisions.[72]

There is a focus towards encouraging parties to resolve a dispute or reach an amicable settlement about customary land in accordance with the rules of custom or any other lawful way. In fact, there is a provision whereby a land tribunal can adjourn a hearing to encourage and facilitate settlement between the parties; and if there is no amicable settlement within 10 days of the adjournment, to recommence the hearing.[73] The Minister of Lands may produce guidelines for the CLT in consultation with the National Council of Chiefs. However, any written guidelines are declared to be advisory and not mandatory.[74]

The procedural aspects of the Act are very specific and from a practical point of view may even be considered onerous given possible lack of resources and capacity. The costs (i.e. sitting allowances, transport and communication) associated with any hearing is an equally shared responsibility of the parties to a dispute and a hearing will not commence until costs are paid to the secretary of the land tribunal.[75]

In my view, the rules of evidence, conduct for hearings, and decision-making process follow acceptable standards of administrative law and natural justice, including use of Bislama, English or French language as appropriate to the case and parties. Parties cannot be represented before any land tribunal by a person with legal qualifications, experience or training (although such a person is not barred from appearing as a party or a witness in a proceeding).[76] The members of the tribunal must inspect the disputed land and, if possible, must walk around the boundaries of the disputed land.[77]

The powers for a land tribunal in making orders as part of its decision are flexible and broad ranging. The tribunal may give one or more of the following orders:[78]

· An order declaring the rights of the parties;

· An order that a person move out of occupation of the land on a permanent basis or for a specified period;

· An order that a person pay compensation for the use of land, or damage done to lands, crops, plants or animals, or injury caused to a person;

· An order that a person pay a fine as punishment for misconduct on the land;

· An order that a person pay a fine for misconduct at a tribunal hearing;

· Such other orders as the tribunal considers necessary.

Perhaps the most significant element of the legislation and the customary land dispute regime is that it seeks to achieve finality and certainty into the future regarding customary land ownership and final settlement of disputes. Subject to the Constitution of Vanuatu; exhaustion of appeal rights up the hierarchy of tribunals and/or rehearing in specified circumstances under the Act; and the limited procedural supervision by the Supreme Court – then any decision of a land tribunal is final and binding on the parties and those claiming through them, and the final and binding decision cannot be challenged, appealed against, reviewed, quashed, set aside or called into question in any Court on any ground.[79]

Once a final decision is made, the secretary of the land tribunal must send a copy of the decision to the Director of Lands. The Director of Lands must produce a translation of the land tribunal decision in the appropriate language and distribute to the principal chief of the village and/or chairperson of the council of chiefs in the locality of the land. As well, the Director must keep up to date records and a register of land tribunal decisions for each island of Vanuatu.[80]

The offences and penalty regime under the CLT is very stringent and covers a range of potential procedural and substantive offending under the Act. A person is guilty of an offence punishable on conviction by imprisonment not exceeding 5 years or a fine of not more than VT500,000, or both. Offences include - where a person influences, or attempts to influence, a decision of a land tribunal; presentation of argument or evidence to a land tribunal which the person knows is false; acting as a member of a land tribunal and the person knows, or ought reasonably to have know, that he / she is not qualified to act as a member; appointing another person who is equally disqualified to act as a member; failure of any person to comply with an order (i.e. decision) of a land tribunal; disrupts, or attempts to disrupt, the proceedings of a land tribunal; or causing or threatening violence to any person in the precincts of a land tribunal.[81]

2.4.1.3 Customary Considerations

The various Acts governing land reform, alienated land and land leases do not contain a great deal of express reference to customary considerations. However, the operation and implications of these Acts are significant in terms of re-establishing the foundation of customary land ownership and associated dealings with land in Vanuatu. In the case of disputed custom land, the Government acts on behalf of the custom landowner. In the case of undisputed custom land, the leasing regime permits voluntary and direct leasing arrangements to be negotiated between the custom landowner and lessee and reserving the final approval role of the lease to the Minister of Lands. Furthermore, over time standard forms of leases have been developed with terms and conditions that seek to maintain environmental integrity associated with the land, as well as reserving certain rights (predominately usufruct rights) to the custom landowner.

By way of example and with particular reference to an agricultural lease, there are some standard terms and conditions which reserve important natural resource and subsistence rights to the custom landowners. As noted above, these rights are predominately usufruct and are subject to non-interference by the custom landowner with the lessor’s rights and agriculture operation. The landowners retain the right to fish and bathe in any waters on their land. Subject to giving reasonable notice to the lessee, the landowner may extract water from the land for all usual domestic and their own agricultural purposes. The right of landowners to hunt on the land is preserved as is the right to extract naturally regenerating trees and products from the land. Custom landowners are prohibited in planting or engaging in long term plant production on the land (such as cocoa or coconut trees) and subject to the consent of the lessee, custom landowners may plant gardens for their subsistence.

Under the LRA “custom owners” is defined as meaning the person or persons who, in the absence of a dispute, the Minister is satisfied are the custom owners of the land. A “custom group” means a person or persons who claim custom ownership of disputed land; and “disputed land” means land the ownership of which is claimed by more than one custom group.

The LRA sets up a process whereby no alienator or other person may enter into negotiations with any custom owners concerning land, unless he / she applies to the Minister and receives a certificate giving endorsement as a “registered negotiator”. If negotiations are completed without such certification, the Minister may refuse to approve the subsequent lease or other arrangements which have been negotiated.[82] This requirement is a further example of Government’s fiduciary role which operates for the protection of both parties to commercial negotiations that representation of custom landowner is proper. The negotiators application for registration and a certificate from the Minister specifically requires the applicant to “…state your views or proposals with respect to participation of the custom owners in the ownership and management of the business conducted on the land, in the event that an agreement is negotiated with the custom owners”. [83]

The provision of the LRA concerning “public land” are often described by commentators as “controversial” because the capacity of Government, after consultation with custom owners, to declare any land to be public land – is perceived to undermine the constitutional repatriation of land to indigenous custom landowners (albeit the Constitution also recognises a form of tenure for state or public lands). Notwithstanding, the LRA provides an elaborate process for the development and use of land for public purposes. The Minister is required to give 6 months notice to the custom landowner and to make an agreement with the custom owner for the use of the land and payment of compensation (including compensation for the loss of any improvements on the land).

As well, the Government has discretion under the Act to allow minority representation of the custom owners on any body that may subsequently manage the public land. Forms of compensation under the LRA are flexible and may include a lump sum payment to be paid to the custom owners over not more than a 30 year period; the transfer of other public land to the custom owners; the provision of free services to the custom owners at agreed rates by Government, public utilities or municipalities; shares in a company established for developing the public land; and/or an agreed share of the net income that will be derived from the public land. In determining the amount of compensation, Government must take into account the market value of the land and any other matter it considers relevant.[84]

Under the ALA and provisions relating to lease negotiations, the rights and interests of custom landowners relating to rental and values associated with leases is arguably further protected through the engagement (if required) of an independent expert party – the Lands Referee. Under section 17 of the ALA, where part of the lease negotiations may include payment for the value of improvements to the land (i.e. from the custom owner to the alienator), where the value assessed under the Act or any other law is over VT1,000,000 and the custom owners are unable to pay the full value of improvements, the custom landowner is entitled to make payments for improvements by equal instalments over 10 years.

The fiduciary role by Government is also reflected in the ALA for lease negotiations, whereby if in the opinion of the Minister custom landowners cannot be identified within a reasonable time, the Minister may appoint a person to act as Trustee for the custom owners for the purposes of the Act. The Trustee is statutorily deemed to be the custom owner and is not personally liable for any act done by him / her undertaken in good faith on behalf of the custom owners.[85]

Lastly, where the Government has acted on behalf of disputing and/or unidentified custom landowners in relation to lease arrangements, any moneys payable to the custom owners under any lease is required to be paid into a special fund established by Treasury and is held in trust on behalf of the relevant custom landowner.[86] However, the ALA is silent in relation to the requirements or terms of disbursement of this special fund, but one is probably not wrong to presume that disbursement of moneys accrued from leases will be released to the respective and declared custom landowner after the processes and a final decision under the Customary Land Tribunal Act [No. 7 of 2001].

The Customary Land Tribunal Act [No. 7 of 2001] (CLT) and its regime for the settlement of customary land disputes, has filled the enormous gap that previously existed in Vanuatu’s legislative structure for final and binding settlement of customary land disputes. As noted in the section above, the regime is set up to recognise, reflect and operate with its foundation being kastom principles. The hierarchy of land tribunals starts from a village level, through to custom areas (or sub-areas for the larger island) up to island level.

A critical aspect of customary recognition and adjudication within the land tribunal processes requires public notice to be given, special notice to and the participation of the principal chief/s within the village, custom area or island concerned. The membership of a land tribunal at the village and/or custom area level must include a principal chief and two other recognised chiefs or elders appointed by the principal chief or custom area council of chiefs. By comparison a land tribunal at the island level will be constituted with the chairperson of the council of chiefs and four other recognised chiefs or elders appointed by the island council of chiefs. Where the disputed land straddles overlapping boundaries at village or custom sub-area or custom area, then the Act requires appointments to reflect the overlap.[87]

The qualification requirements for individuals to be appointed to the various land tribunals, requires the approval of traditional authority structures and registration of a “…list of chiefs and elders who have sufficient knowledge of the custom of the village, custom sub-area, custom area or island (as the case may be) to adjudicate disputes relating to the boundaries or ownership of customary land”.[88] A chief or elder may not be appointed unless they are registered in this way for the purposes of the CLT.

A chief or elder must not be appointed or continue as a member of a land tribunal if he / she is incapable of adjudicating the dispute by reason of physical or mental disability; is holding any elected office in Parliament, local Government or municipal council; is holding any office in a political party; has such business or financial interests, or social, religious, political or other beliefs or associations that which prevent him / her from applying custom honestly and adjudicating a land dispute impartially; who has otherwise been disqualified for influencing a decision of a land tribunal or for other reasons; or has been convicted of an offence against the Act.[89] Before becoming a member of a land tribunal, an appointed member must take the following oath:

“I swear by Almighty God, that I am qualified to act as a member of a land tribunal and I know no reason why I should not adjudicate this dispute, and I promise that I will adjudicate this dispute honestly and impartially, and strictly in accordance with custom. So help me God.”[90]

The success and integrity of the customary land disputes regime over time for Vanuatu is likely to be critically linked to recognised and respected chiefly authority, the knowledge and application of custom and/or other customary considerations to be adjudicated on through the evidence, procedural aspects and an environment which is appropriate and comfortable for disputing parties, as well as parties resolved to accepting and complying with the final and binding decision of a land tribunal. As a final act of endorsement of this process, the Act encourages the parties to engage in a “customary reconciliation ceremony” after a land tribunal announces its decision.[91]

2.4.1.4 Observations

In terms of environmental protection, there is a pitfall in that the customary land dispute process does not provide an avenue to deal with environmental destruction prior to resolution of custom ownership of the land. There is no jurisdiction or power at any of the land tribunal levels to make an order that operates independently to stop environmental destruction or to make any other orders prior to a decision settling the question of custom ownership (i.e. as between customary claimants and not necessarily lease situations). This position is also reflected in the “Draft Guideline” for the CLT produced by the Land Tribunal Office, Department of Lands.[92] A land tribunal’s power to make orders which may be influenced by environmental concerns (i.e. the payment of compensation for use of land, or damage done to land, crops, plants, or animals) only operates post-environment destruction and the aggrieved party would need to produce evidence and quantification to support a compensation order of this nature.

Given that the customary land dispute process contemplates a four-tier process for decisions with appeal rights to higher tribunal levels – an order that included compensation for environmental damage might operate to give de facto environmental protection during the further appeal stages. However, there is no guarantee. An order which is subject to appeal does not provide a sound legal basis to maintain the status quo for the natural resources and environment associated with the land. The practical conflict here is that the assertion of customary ownership and relationships to land is more often than not asserted or demonstrated by natural resource use (which could persist unsustainably for a long period of time until final resolution of the custom land ownership dispute and subsequent rights).

The legal avenue for environmental protection where custom land ownership is disputed is to initiate a civil case in the Magistrates Court. Such a proceeding would likely be on the basis of seeking an interim injunction to stop further environmental destruction and/or protect the status quo of the environment until custom ownership is confirmed. Under the Magistrate’s Court (Civil Jurisdiction) Act [Cap 130] and the Courts Act 1980 [Cap 122], I could not find an express provision in either Act concerning an interlocutory or injunctive power. Therefore, this is likely to be part of the Court’s inherent jurisdiction (or stipulated in another Order or procedural details for the Magistrate’s Court). This proposition is supported by the fact that there is no express restriction in the legislation which precludes consideration of environmental matters. The general jurisdiction for civil claims is where the value of the subject matter does not exceed VT200,000.[93]

In terms of the other land related legislation and the integration of customary issues, it is my view that the LRA, ALA and the LLA are proactive in a statutory sense because the regimes operate to give expression to the constitutional repatriation of land to indigenous custom owners. At the same time, the regimes provide an oversight, guardianship and approval role for Government to ensure that leasing arrangements in respect to mainly productive areas of land are fair and reasonable to all parties and reflect commercial realities. The development over time of standard leases and terms and conditions that reserve customary rights and impose various environmental practices should result in consistent and sustainable practices. However, the practical challenge for Government and/or the custom landowners in a non-disputed leased land environment is the monitoring and enforcement of contractual arrangements.

“Although [land] disputes may be resolved between parties for a period of time there is a strong likelihood that the conflict will erupt again. The reason for this is that succeeding generations do not feel themselves bound by the decisions of a previous generation. Because land is communal not just for present generations but for future ones, no one group of people has the right to deal with the land to the detriment of succeeding generations. All landowners are custodians of the past and for the future. This presents a real difficulty. People do not feel bound either by the decision of chiefs, or courts or by the restraints of contracts. Everything is up for renegotiation, whether it is a question of rent, or a decision relating to a boundary or who can cultivate land. The difficulty of accepting fixed limits is apparent in cases where leases have been granted or where compensation payments have been made for land used for public utilities. The consequence is that leasehold titles are insecure, or at the very least the details of lease arrangements are… There are provisions for rents and premiums to be reviewed at five year intervals or for the value of land to be reviews in the case of development and these reviews provide opportunities for re-negotiation sometimes to the detriment of investors and developers.” [94]

In some respects, it is arguable that the nature and extent of customary land disputes in Vanuatu and what in reality could be a significant number of years for the tribunal processes to settle all customary ownership issues – has the effect of creating a significant barrier to the development and use of land. However, on the other hand this natural “brake” because of the complexity from constitutional evolution and relationship between kastom and land may provide the necessary breathing space for Vanuatu to do the hard thinking and the development of appropriate infrastructure and mechanisms to support sustainable development in the longer term.

2.4.2 FORESTS

2.4.2.1 Background

Due to the relative geological youth of Vanuatu and its isolation, forest ecosystems in the country are not considered to be as diverse of those found in other Western Pacific nations such as Papua New Guinea, Solomon Islands and New Caledonia. The secondary forests and thicket formations which cover extensive tracks of depopulated inland areas are partly a result of shifting cultivation activities of the pre-contact population.[95]

Rural and village communities of Vanuatu continue to use their forests for subsistence food, firewood, building materials, medicinal purposes, traditional and cultural purposes, including art forms. The forests have also become economically important for Vanuatu and forest production and associated activity contributes approximately 13% of the country’s export earnings.

In 1989, the Vanuatu Environment Unit conducted a survey to investigate the effects of forestry logging operations on the environment. The survey was partly an exercise in monitoring compliance with obligations of forestry leases and timber licences by the commercial operators. The study concluded that “little was known about the effects of felling operations” and that in the survey areas visited, there were no large-scale environmental impacts because most logging operations were modest in size. However, this study also identified that the replacement of primary forests by shrubs and weedy plants was having a significant effect on the existing flora and fauna; land and soil erosion was evident even in flat areas; there was considerable damage to roads caused by logging equipment and reckless driving activity; and there were contraventions of particular lease conditions in that trees were being felled less than 20 metres from the mean high water mark (i.e. within the coastal environment).[96]

A National Forestry Inventory conducted in 1993 identified forest resources of Vanuatu. Approximately 36% of the total land area is forested, however only 20% is exploited. The remaining forests (16%) is not suitable for commercial exploitation because of the poor quality of timber, difficulties in accessing areas, significant slope gradients and dissected landforms such that logging is not be cost-effective, impracticable with current technology and potentially environmentally disastrous.

Therefore, the Government’s development focus in the forestry sector from the late 1970’s to the present day is to encourage timber plantations to increase forestry productivity and quality. However, this approach has not been without trial and error for Vanuatu and one particular form of forestry plantation of the 1980’s has become unsustainable through unforeseen environmental effects.

“A total of 11,160 hectares were planted with the main tree species used being cordial (Cordia aliodora) from South America that was thought to be good with good markets overseas. This has not been the case two decades later. The species is quite vulnerable to cyclone damage; fungus attacks and has low market value. Over time it has shown a negative environment impact that was not initially made known to the rural communities. The stands are becoming pests. They regenerate very quickly and compete for space, water and light and spread into new areas cleared for gardens and agricultural plantations adjacent to the existing plantations. It is not surprising if the area has increased by more than 50%. The microclimate in these plantations is that it is becoming drier, which will definitely displace both the plant and animal species that existed in the area.”[97]

In Vanuatu’s forestry sector, the recognition and participation of custom landowners and communities has become one of the founding principles of developing sustainable forestry activity. The National Forest Policy (1997) outlines various policy objectives for forest management, environment and conservation, forest industries, forest administration, forestation and extension activities of the Department of Forests. The national policy recognises and sets the following policy objectives in relation to custom landowners and communities:

· Improve knowledge and awareness of environment values and sustainable forest management;

· Encourage the recording of indigenous knowledge of forest resources;

· Encourage increased ni-Vanuatu participation in the forestry sector;

· Increase employment opportunities and develop a highly skilled ni-
Vanuatu work force for the forestry sector;

· Foster rural development and self reliance though community forestry;

· Protect the rights of landowners regarding the use and protection of their forest resources;

· Promote advice and awareness about the importance and uses of trees;

· Establish and manage conservation areas with landowners’ participation; and

· Encourage communities to minimise soil erosion and to rehabilitate existing eroded areas.

2.4.2.2 Assessment of Legislative Provisions

The framework for forest resources and the utilisation of forests in Vanuatu has been the subject of legislative reform. The Forestry Act [No. 26 of 2001] (FSA01) received assent on 30 December 2001. FSA01 has been operative since 2003. The following assessment includes the Forestry Act 1982 [Cap 147] (FSA82) and the Forestry Regulations (Order 10 of 1984; and Order 56 of 1985). *** Refer to Postscript.

The purposes of the respective FSA82 and FSA01 provide some insight and confirmation of the underlying shifts in environmental regulation currently experienced in Vanuatu. The FSA82 provides for the “…development and control of forestry operations and for purposes incidental thereto”. The FSA01 provides for “…the protection, development, and sustainable management of forests and the regulation of the commercial forestry industry of Vanuatu”. Both Acts generally deal with the utilisation of forests; provide elaborate agreement and licence provisions for commercial forestry operations on any land; measures for the protection of the forest environment; reforestation; and the exportation of timber.

The fundamental differences between the two Acts is the introduction under the FSA01 of policy development and planning obligations for the forestry sector; and the mandatory recognition of the Vanuatu Code of Logging Practice as set out in Schedules 1 – 9 of the Forestry (Vanuatu Code of Logging Practice) Order No.26 of 1998.

In terms of environmental protection under the FSA82, the significant elements of this legislation include the following:

· Restriction of Clearing Operations near Streams – The written approval of the Minister is required for any person who conducts any clearing operations using any bulldozer, grader, tractor or similar machine to clear land within 10 metres of any stream.[98]

· Prohibiting or Restricting Clearing or Utilisation Operations for the Protection of Land – Where the Government is satisfied that any land should not be subject to any clearing or utilisation operations in order to (a) prevent soil erosion or serious interference with stream flow; or (b) preserve the ecology of the land area; or (c) conserve the land as part of an area of particular scenic, cultural, historic or national interest; or (d) preserve the land for use by the public for recreational purposes - there is a discretion for the Minister by order to forbid or restrict clearing or utilisation operations and to otherwise provide for the management, control and protection of the subject land.[99]

· Protection from Fire – In relation to any rural land, no person can light or maintain any fire or leave any fire burning or permit any fire to be lit or maintained or left burning so as to create a likelihood of damage to land or any property.[100]

· Regulation for Valuable Species – The only power for the specific purpose of environmental protection, is where the Minister may by order make regulations to provide for the protection of valuable species of trees, including the forbidding of the cutting down of specific trees or species of tree with or without consent.[101]

· Standard Conditions of Timber Licence – There are two environmental conditions that are imposed on timber licences under the Forestry Regulations - that the licensee shall not fell any tree of any species designated by the Minister on the licence as a reserved species[102]; and the licensee shall not fell any tree marked or branded by any forest officer as a seed tree.[103]

· Standard Conditions of Forestry Lease – There are a number of environmental conditions that are imposed on forestry leases – the lessee covenants to manage the land in such a manner so as to preserve its fertility in accordance with good management practice; to keep the land clean of all refuse, noxious weeds, vermin and rubbish and not to commit any willful or voluntary waste, spoil or destruction of the land; an obligation to take all reasonable precautions to protect trees and plantations from fire; and the extraction of water rights to the lessee for forestry and processing purposes does not extend to restricting or changing the natural watercourse of streams or surface waterways unless prior consent of both landowners and the Department has been obtained.

In terms of environmental protection under the new FSA01, the significant elements of this legislation will include the following:

· Conservation Areas – Upon the request of the custom landowner, an area of forest with particular scientific, cultural, social significance, or other special feature may be declared a Conservation Area. Where an area has been formally declared, commercial forestry operations are prohibited.[104]

· Protected Plant Species – The Minister has power to declare any species of plant as a protected species; and those species cannot be felled or removed in the course of commercial forestry operations, unless expressly authorised by a licence.[105]

· Mandatory Restrictions on Commercial Forestry Operations – Certain restrictions on forestry operations which are aimed at protecting the environment - a 20m buffer zone around watercourses; no logging within 100m from mean high water mark (i.e. in the coastal environment); no logging on land having a slope in excess of 30 degrees, or less if prescribed in the Vanuatu Code of Logging Practice (e.g. highly eroding soils); no activity within a protected rainfall catchment area declared under any other Act.[106]

· Establishment of the Forestry Project Fund – A special fund made up from partial contributions from Government by way of export earnings, the reforestation charge paid custom landowners engaged in forestry operations and other commercial operators, and licencing fees from commercial forestry operations. The main purpose of the fund is to assist with the establishment and maintenance of forest plantations and for other afforestation and reforestation initiatives.[107]

Under the FSA82, the general penalty provision for offences and non-compliance with the requirements of the Act (with the exception of breaching forestry licences which includes a statutory power for the Minister to terminate) is significantly less than the majority of Vanuatu’s other environmental legislation. Generally, offences for which no other penalty is imposed under the FSA82 are liable for a fine of VT100,000 or to imprisonment for a term not exceeding 6 months or to both. Similar to the legislative reform experienced in the fisheries sector which is described in the following section 2.4.3, it is encouraging that the types of penalties and levels of fine for non-compliance have significantly increased (in the order of 5 – 10 times) under the FSA01. However, leading up to the FSA01 becoming operative it is not difficult to understand why the FSA82 regime was not generally well complied with and/or enforced.

The Forestry Rights Registration and Timber Harvest Guarantee Act [No. 28 of 2000] (FRR) sets up a regime for the registration of certain forestry rights granted in respect of land, and for the harvesting and accreditation of timber plantations. This Act applies where a forestry right has been granted (i.e. under a lease or covenant arrangement under the primary forestry legislation) and that right may be registered against the title of the land and is deemed to be property for certain purposes (such as transferability and/or binding assignees, representatives and successors in title to the land area concerned).[108] A further property right recognised under this legislation is a “carbon sequestration right” meaning in relation to land, a right conferred by agreement or otherwise to the legal, commercial or other benefit (whether present or future) of carbon sequestration by any existing or future tree or forest on the land.[109]

The FRR also provides forms of guarantee for a timber plantation, which relates to an area of land on which the predominant trees forming or expect to be formed, are the result of planting for the purpose of timber production. In other words, natural forest is not a timber plantation for the purposes of this Act.[110] The scheme of this part of the FRR is potentially alarming from an environmental point of view. This is because any activity carried out for the purpose of establishing or maintaining a timber plantation (e.g. the clearing of natural forests, the use of pesticides, herbicides and fertilizers in establishing or maintaining the plantation) are deemed not to be an activity constituting “harvesting operations”.[111] In other words, it is not until the utilisation or harvest of the trees that the operation becomes subject to a Timber Plantations Code (which may be established under the FRR) and/or the requirements and environmental standards of the Vanuatu Code of Logging Practice.[112]

The style of guarantee for accredited timber plantations under the FRR appear in forms of permissive or non-interference type provisions whereby the Forestry Act 1982 [Cap 147] does not apply for harvesting operations; a provision of any Code must not be enacted or amended so as to prevent or interfere unreasonably with the carrying out of harvesting operations; and a local Government or municipal council may not make or amend any order, bylaw, rule or other legislative instrument so as to prevent or unreasonably interfere with harvesting operations.[113]

On a more positive note in terms of environmental protection under the FRR, the one element of this legislation includes:

· Timber Plantations Code[114] – As soon as practicable after the commencement of the FRR, the Director is to prepare and submit to the Minister for approval, a Timber Plantations Code. This Code may regulate the carrying out of operations (including harvesting) on accredited timber plantations for the purposes of protecting the environment.

The Code may apply generally or to a specified class of timber plantation/s. In particular, the Code may deal with the following issues:

a) Harvesting plans;

b) Works ancillary to harvesting operations;

c) Soil erosion and sediment control;

d) Native animals and plants;

e) Post-harvest bush fire and hazard reduction burning;

f) Indigenous relics and cultural or historic sites; and

g) The protection of unique or special animals or plants.

The Timber Plantations Code must not contain provisions which are inconsistent with any Act or law applying to forestry operations and any inconsistent provisions will be void. Once approved, the Code (and any subsequent amendments of the Code) does not have any legal effect unless adopted under regulations.

Where the Director believes on reasonable grounds that an operation is not being carried out in accordance with the requirements of the Code, the Director may give the owner or manager of the timber plantation written notice to remedy the breach. If remedial action is not taken and non-compliance persists, then the Director may apply (no time period is stipulated in the Act) to the Supreme Court for the imposition of a fine on the owner of the timber plantation – in the case of an individual VT200,000 and in the case of a company VT1,000,000.

2.4.2.3 Customary Considerations

The FSA82 attempts to balance forestry production with customary considerations. This is achieved by separating the central Government functions of granting, administering and revenue benefits from forestry activity through licensing from that of the rights of custom landowners to contract independently with forestry operators. As well, forestry licences have been standardized with terms and conditions that reserve certain rights to custom landowners (i.e. predominantly usufruct type rights).

In the FSA82, “owner” is defined in relation to land as including a number of owners and one or more persons with a right in custom to exclusive use of land and any association, corporation, cooperative or other body of persons representing such number of owners or person.[115]

Under the FSA82, the provisions relating to forest plantation agreements (between Government and any custom landowners entered into for the purpose of assisting owners to establish timber plantations on their land) stipulate that one matter that must be addressed in the agreement is the measures to be taken for the protection of places on the land which may be considered sacred or of national or cultural importance. One of the covenants by the landowner is that they will not lease or otherwise dispose of the land or the trees or cut down the trees without first obtaining the prior consent of the Minister.[116] The agreements between landowners and Government may be reviewed by the Minister every five years.

In terms of economic returns to the landowners, after the harvest, production and sale of the timber from the plantation, the owners must repay to Government all the monies expended by it in the establishment, maintenance and production as defined in the forest plantation agreement and pay the reforestation charge (i.e. such percentage of the market value of stump of the timber cut, sold or utilised as prescribed and assessed by the Minister).[117]

The Government shall not enter into a forest plantation agreement unless it is satisfied that the other party to the agreement properly represents the landowners. If an owner of a plantation is changed through proper judicial, legal or customary recourse, the Minister must notify the new landowner of the current financial balance pertaining to the forestry plantation under agreement. At that stage, the new owner is provided with a statutory option to terminate the agreement (subject to reconciliation in full within a specified time of all moneys owed to the Government) or to endorse the continuation of the forestry plantation agreement.[118]

Although not expressly stated in clear terms under the FSA82, the customary and non-commercial extraction of timber by a custom landowner is exempted from the requirements of utilisation operations and licence obligations. Section 10(1) (Exempted Operations) of the FSA82 states:

“A person who fells timber on his own land to provide timber for his own use shall not require a timber licence.”

However, arguably this would not extend to extraction to a point that undermined the commercial integrity of the plantation and would also be interpreted against the express covenants in relevant forestry plantation agreement (referred to above) not to cut down the trees without obtaining the prior approval of the Minister.

Where any person, not being the owner of the land concerned, is intending to apply to the Department for a timber licence for any utilisation operation and harvesting of timber, a prerequisite for an application is for that person or company to have entered into an agreement in writing with the properly authorised representatives of the custom landowners. Such agreement is required to be in a language acceptable to the parties. The Minister can only approve the agreement (and subsequently process the application for a timber licence) where he / she is satisfied that the agreement complies in terms of representation and that it also adequately protects the interests of the landowners. Any agreement not approved by the Minister shall have no legal effect.[119]

“All forests, trees and forest produces are owned together with the land. Therefore, any land development issues such as negotiating a logging contract agreement, or a large scale plantation establishment, the landowners or group of owners are consulted and their views are taken, documented and incorporated into the plan. Views and concerns of the resource owner’s are important because if taken seriously, it will assist to reduce conflict or disputes in the future, and therefore guarantee security and sustainability of the project.”[120]

Under the Forestry Regulations, the agreement between the commercial operator and custom landowners must also contain a boundary description and map sufficiently accurate to be acceptable to the Minister.[121] The regulations also impose standard terms and conditions of the agreement to protect certain rights and/or environmental integrity for the custom landowners. The standard form (Schedule 2, Clause 2) of the regulations includes the following obligations:

“(g) [The applicant] Not to cut any fruit or food trees and to ask permission of the owner of the land before cutting any of the following species … [to be stipulated].

(h) [The applicant] To pay damages in the form of cash compensation or as otherwise agreed by both parties to the owner or occupier of the land as the case may be, in the event of the following:

(i) damage to existing roads;

(ii) damage to fences (including wire, posts or gates);

(iii) pasture space lost due to excessive logging debris;

(iv) pollution or siltation to water for human or animal consumption;

(v) damage to food trees planted by the owner or occupier of the land;

(vi) cost of labour and equipment employed to recover cattle escaped due to damage to fencing or action of logging company;

(vii) other damage to the owner or occupier of the land through deliberate action or negligence.”

Lastly, the agreement is premised on encouraging dispute resolution inter-party in the first instance. Clause 3 provides that the landowner and the applicant must agree and stipulate in the agreement that in the event of any dispute arising between them, the matter would be referred to a nominated person or party. The custom landowner has a right to terminate the agreement at any time and without notice in the event that damage caused by the commercial operator to any property of the owner or occupier of the land which has not been promptly rectified or compensated for. Termination in this event does not prejudice the right of the landowner to enforce the agreement and/or claim damages against the operator for the damages caused.[122]

In relation to a forestry lease, there are also standard terms and conditions which reserve important natural resource and subsistence rights to the custom landowners. As noted earlier, these rights are predominately usufruct and are subject to non-interference by the custom landowner with the forestry operation. The landowners retain the right to fish and bathe in any waters on their land. Subject to giving reasonable notice to the lessee, the landowner may extract water from the land for all usual domestic and agricultural purposes. The right of landowners to hunt on the land is preserved as is the right to extract naturally regenerating trees and products from the land. Custom landowners are prohibited in planting or engaging in long term plant production on the land (such as cocoa or coconut trees) and subject to the consent of the lessee, landowners may plant gardens for their subsistence.

The only reference to customary considerations under the FRR relates to some specified matters which may be addressed in a Timber Plantations Code (i.e. native animals and plants (which may form part of the customary food chain or other customary purposes)), indigenous relics and cultural or historic sites, and the protection of unique or special animals or plants (which may include species of significant traditional or cultural value (i.e. coconut crab and medicinal plants)).

2.4.2.4 Observations

As noted earlier in this section, the legislative framework for forest resources is focused on regulating the utilisation of forests. Sustainable practices, maintenance of environmental integrity and protecting the rights of custom landowners are sought through a mixture of statutory provisions and protections, codes of industry standards and contractual obligations imposed by conditions of forestry leases and/or timber licences.

The commencement of the FSA01 will provide an improved platform for the use, sustainable development and protection as appropriate of the forest resources of Vanuatu. In some respects, Vanuatu has a natural advantage for part environmental protection of the country’s natural forests resources due to the extreme topography and characteristics which render extraction and logging impracticable and unsustainable (on both economic and environmental grounds).

In terms of the integration of customary issues, it is my view that the FSA82 is proactive in a statutory sense because the regime recognises and provides through contractual arrangements the capacity of custom landowners to engage in commercial timber production. Furthermore, in the case of a commercial operation the non-commercial and usufruct rights of custom landowners and communities are preserved. However, the practical reality and challenge of contractual approaches to forest utilisation requires that all parties involved must be satisfied that contracts are entered into with the proper and authorised custom landowner and/or their representatives. As well, the Government is essentially acting in a custodian or fiduciary capacity on behalf of landowners where custom land ownership disputes persist.

One of the secondary benefits for landowners and communities is that logging operations often result in the establishment of roads and opening of access to their isolated communities. However, the downside experience is that once the logging operation has withdrawn, there are no continuing obligations on any party for the maintenance of such roads which may gradually turn into dangerous and unsustainable scars on their land.

In terms of maintaining principles and obligations of sustainable practice in the forestry sector, compliance with the logging code/s of practice and performance of standard terms and conditions of agreements and licences – the regime is dependant on continual monitoring and enforcement. There continues to be questions around central Government’s capacity in isolated places and thereby the participation and monitoring at the local community level is the fundamental check and balance. Despite the contractual capacity of custom landowners to exercise rights to seek compensation and/or damages for non-compliance, there does not appear to have been any successful proceedings of this nature. This potentially raises questions about the custom landowner capability, understanding of the contractual context, the access to justice and resources to support their engagement on this level.

From a policy and operational perspective, Vanuatu’s forest sector appears to have been more proactive than other Western Pacific countries in recognising that the participation, upskilling and active engagement of the ni-Vanuatu population in forestry activity will be critical to the long term sustainability and potential economic contribution of forestry to the country from both a local and national perspective.

2.4.3 FISHERIES

2.4.3.1 Background

Vanuatu’s fisheries resource under its exclusive economic zone covers an area approximately 60 times larger than the country’s land area. Marine resources are one of the most valuable resources to ni-Vanuatu people and communities for daily life and sustenance; and to the nation as a whole for significant export earnings, economic value through licencing rights to fisheries and the contribution to Vanuatu’s tourism earnings. Commercial fishing enterprise has not developed in Vanuatu as rapidly as in other Pacific countries.

The fisheries and marine resources comprise distinct marine ecosystems in Vanuatu – the open ocean waters for pelagic fisheries; the open ocean for benthic and bottom dwelling species; the submarine volcano-sea mounts and thermal waters; and the near shore coastal waters and coral reefs.

“The temperatures of waters surrounding Vanuatu are cooler than those generally preferred by migrating tuna stock. This limits the overall population of tuna in Vanuatu waters… According to the Asian Development Bank (2002) reef fish on the other hand near the heavily populated areas of Efate, Espiritu Santo and Malekula tend to be over-fished, while the reef fish stocks elsewhere in the archipelago are generally under-exploited. The tuna resource is most likely nearer to being fully exploited by long line and purse sine vessels operating under permit in Vanuatu waters. More intensive monitoring of these vessels is a need to determine exact catch volumes and to establish user fees accordingly. There are currently no on-shore tuna processing facilities in Vanuatu.” [123]

Fisheries resources are the subject of a very recent and comprehensive legislative regime which became operative in 2006. However, there is a pervasive view that the key problems associated with the fisheries regime is the lack of fisheries management planning and policy; and that poor implementation, monitoring and enforcement is a serious impediment to sustainable development, management and conservation of fisheries resources.[124]

From an environmental and socio-economic perspective, another significant challenge in the fisheries sector is the lack of cohesion and/or management skills across different agencies. For example, Provincial Councils can develop by-laws affecting marine resources within their territorial waters which may conflict with the centrally managed system of fishing licencing. The maritime interface with the role of the Vanuatu Maritime Authority and other shipping legislation is not well established. For example, there is no formalised maritime search and rescue operation in Vanuatu which poses a concern for maritime related accidents and the potential of environmental disaster from oil spills and ongoing pollution from wreckage.[125]

The Government’s management strategy in relation to fisheries resources contains two main themes. For the commercial fisheries, the use of formal management planning and regulation through licencing. In relation to the subsistence and village-based fisheries, the management approach is reflecting growing and rapid devolution of management and responsibility to local chiefs and communities.

Vanuatu has learnt (and continues to learn) from experience that it is impossible and impractical to effectively regulate, monitor and enforce national fisheries regulations from an under-resourced central and/or regional agency level. Non-compliance with the fisheries laws generally goes undetected and unpunished. Confusion over resource rights and conflicts between commercial fishers, subsistence fishers and fishery officers make any form of management difficult. As a result, fisheries initiatives and partnerships are encouraged between Government, non-Government organisations, traditional authority (i.e. chiefs) and village communities to manage their own near-shore coastal resources.[126]

“Vanuatu’s Fisheries Department realizes that managing most of its coastal fisheries from Port Vila is impossible. The costs of research, monitoring, and enforcement, in the multitude of small fisheries associated with Vanuatu’s several hundred coastal villages would outweigh the benefits by several orders of magnitude. But the Department is beginning to play a vital indirect role in management by working in villages to help combine local [traditional and customary] knowledge with modern research based knowledge to improve village-based management.” [127]

2.4.3.2 Assessment of Legislative Provisions

The framework for fisheries resources in Vanuatu is the most recent environmental related area to be the subject of extensive legislative reform. The Fisheries Act 1982 [Cap 158] (FA82) has been repealed by the Fisheries Act [No. 55 of 2005] (FA06) which came into force on 27 March 2006. Importantly, unless inconsistent with the FA06, all regulations, orders, notices and declarations of marine reserves given under the repealed Act remain in force as if they were made or given under the FA06.[128]

The purpose of the two Acts is essentially the same – to make provision for the management, development and regulation of fisheries within Vanuatu waters. Like the forestry laws, the fisheries legislation remains focused towards commercial enterprise associated with fisheries resources, licencing of foreign and local fishing vessels, foreign investment in Vanuatu fisheries, and licencing of fish export processing establishments. However, on a closer inspection and contrasting the FA82 with the FA06, there have been some fundamental shifts and the introduction of new provisions which add significantly to environmental management and protection of the resource.

In summary, the notable changes introduced under the FA06 include the following:

· Introduction and recognition of the term “conservation” in the context of fisheries management planning and licencing considerations;

· Reorientation of the fisheries regime to recognise and implement fisheries management in a manner consistent with Vanuatu’s international obligations [129], both within and outside Vanuatu waters;

· Recognition of “recreational fishing” meaning fishing done for leisure and without earnings, gain or profit;

· An absolute ban of driftnet fishing activity and driftnet vessels within Vanuatu waters and ports;

· Declaration of Vanuatu waters as a whale sanctuary;

· Significant increases in the scale of fines and penalty combinations that may be imposed for non-compliance with the Act;

· Statutory obligations and authority for the participation of “observers” on fishing vessels;

· Provisions to enhance monitoring, data collection and sharing of information relating to fisheries resources and activity across different agencies;

· Enhanced enforcement mechanisms, particularly in regard to powers of search, seizure, forfeiture and evidential rules for prosecutions;

· An ethic of encouraging South Pacific harmonisation and cooperation for fisheries management and allocation of rights; and

· The Council of Ministers on behalf of the Government of Vanuatu may enter into “access agreements” with any other Government, association or legally constituted entity with preferential access to vessels of member countries of the South Pacific Forum Fisheries Agency.

Under the FA06, Vanuatu waters include the waters of the exclusive economic zone, the territorial sea, the archipelago waters, and the internal waters as defined in the Maritime Zones Act [Cap 138] and any other water over which Vanuatu claims jurisdiction under international law.[130]

With specific reference to environment protection for fisheries resources, the significant elements of the FA06 include the following:

· Absolute Protection for Marine Mammals – No person can kill, harm, harass, take or move any marine mammal in the Vanuatu Whale Sanctuary (comprising all Vanuatu waters). Marine mammals include all species of whales, all species of dolphins, all species of porpoises and dugongs. Furthermore, a person must not possess, hold in captivity or restrict the movement of any marine mammals; or possess a part of a marine mammal or a product produced from a marine mammal taken within the Vanuatu Whale Sanctuary. Exportation and importation of any marine mammal, marine mammal part, or marine mammal product is also unlawful, with the exception of a permit issued by the Director if he / she is satisfied that the destination of the marine mammal is a public aquarium, public exhibition or a swim-with-marine mammals program for members of the public. The FA06 also introduces a new provision requiring a permit from the Director to undertake a commercial operation for the purpose of viewing or watching marine mammals. Dugongs are also the subject of a new and special exemption for traditional ceremonial purposes which will be discussed in the following section 2.4.3.3 under customary considerations.[131]

· Prohibited Fishing Methods – A person must not allow to be used, use or attempt to use any explosive, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or in any way rendering fish to be more easily caught. A person also commits an offence by carrying or having in his or her possession or control any explosive, poison or noxious substances in circumstances that indicate an intention to use such substance in the ways outlined above. Furthermore, a person must not land, sell, receive or possess any fish taken by way of explosive, poison or other noxious substances, if the person knows or ought reasonably to have known the fish were so taken in that manner.[132]

· Marine Reserves – In consultation with custom owners of adjoining land and the appropriate local Government council, the Minister of Fisheries may declare any area of Vanuatu waters and the seabed underlying those waters to be a marine reserve. This status gives absolute protection to the marine ecosystem, unless written permission of the Minister is obtained. Within a marine reserve, no person can engage in fishing, take or destroy any coral, dredge or take any sand or gravel, disturb the natural habitat, or take from or destroy any part of a wreck. Interestingly, the only use of the FA82 and FA06 marine reserve provisions in Vanuatu to date has been two sites of significance for the purposes of ecotourism and/or diving where environmental protection of marine biodiversity is a secondary benefit.[133]

· Ban on Driftnet Fishing – A vessel in Vanuatu waters must not be used for driftnet fishing activity, or be used to assist in driftnet fishing, or possess or have on board a driftnet. The use of the term vessel means this significant environmental protection mechanism applies to any boat, ship or water craft whether it is a foreign or locally owned vessel. The catching, taking or harvesting fish and attempts to do so with the use of a driftnet is prohibited. Likewise any assistance with aircrafts or otherwise for transporting, transshipping, landing or processing any driftnet catch is unlawful. Even providing cooperation in the form of food, fuel and other supplies to vessels equipped for or engaging in driftnet fishing is illegal. Any vessel engaged, equipped to engage in driftnet fishing or with a driftnet on board, is prohibited from entering any Vanuatu port. A driftnet is specifically defined as a gillnet or other net or a combination of nets that is more than 2.5 kilometers in length, the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water.[134]

The FA06 also provides a general power for the Minister to make regulations not inconsistent with Act for the implementation of its purposes and provisions. In terms of regulatory powers that have the capacity to influence environmental protection, the Minister may prescribe measures for the “conservation”, management, development, licensing and regulation of fisheries or a particular fishery; regulate or prohibit the use of underwater diving apparatus, spear guns and similar equipment; put in place measures to prevent marine pollution affecting fisheries; regulate or prohibit (either generally or in any specified fishery) the taking of coral and shells, the setting of fish fences or nets, or the taking of aquarium fish.[135]

As noted at the beginning of this section, the savings provisions of the FA06 mean that specific conservation focused regulations remain in force. In particular, the Fisheries Regulations 1983 and 1986 contain a dedicated part concerning Fishery Conservation Measures. These measures include matters such as size limitations; protection of species with eggs; methods of fishing; non-interference with nesting sites (i.e. turtles); and requiring permits for fishing certain species.[136]

The FA06 has introduced significant increases in the scale of fines and penalty combinations that may be imposed for non-compliance across all aspects of the legislative regime. On average, the level of fines that may be imposed has increased up to 4 - 5 times more than the levels under the FA82. By way example, under the FA82 non-compliance with the licencing requirements by a local fishing vessel was subject to a fine not exceeding VT10,000,000.[137] Under the FA06, that same offence is now subject to a fine not exceeding VT50,000,000.[138] Furthermore, the monitoring, data reporting, information sharing, search and seizure powers, forfeiture and other enforcement provisions (such as evidential matters, burden of proof and conduct in prosecutions) have all be strengthened. One could speculate that these improvements have been influenced by a number of recent embarrassing and unsuccessful prosecutions against alleged illegal foreign fishing vessel operations in Vanuatu waters.

In relation to the environmental protection provisions under the FA06 the enforcement regime has become more sophisticated with increased fines and/or imprisonment options. Contravention of the absolute protection of marine mammals in Vanuatu’s Whale Sanctuary is subject to a fine not exceeding VT50,000,000 or by a term of imprisonment not exceeding 2 years or both.[139]

Non-compliance with the prohibited fishing methods is subject to a fine not exceeding VT10,000,000 or by a term of imprisonment not exceeding 2 months or both. There is also a new offence provision for any person who is an accessory to the offending (i.e. by way of landing, selling, receiving or possessing fish where that person knows or ought reasonably to have known the fish were taken by prohibited means). In this context, an accessory is guilty of an offence punishable by a fine not exceeding VT1,000,000 or by a term of imprisonment not exceeding 2 months or both.[140]

Breach of the protections afforded in marine reserves is punishable by way of a fine not exceeding VT50,000,000.[141] Lastly, if a fishing vessel is used in contravention of the statutory ban on driftnet fishing activity, the master, owner and the charterer of the vessel are each guilty of an offence and a fine not exceeding VT100,000.000; whereas any person assisting in an offence is subject to a fine not exceeding VT10,000,000. This same fine level applies to any vessel that is or has been engaged in driftnet fishing activity, which is equipped to engage, or has a driftnet on board and subsequently enters any Vanuatu port.[142]

2.4.3.3 Customary Considerations

There does not appear to have been any major reform from the FA82 compared with the FA06 in terms of customary considerations. Both Acts are premised on there being no recognised customary ownership of waters and/or fisheries resources past the seaward side of fringing reefs that are contiguous to land held in custom ownership. Fisheries resources of a commercial nature are managed and coordinated at central Government level with the presumption of ownership in the state of Vanuatu for the national interest.

However, the FA06 has improved the potential for greater recognition of customary considerations and/or activity in some parts of the Act. A notable example of this is the new statutory criteria for the development of fisheries management plans. A fishery management plan must now take into account any relevant traditional fishing methods and practices.[143] During the preparation of a fisheries management plan, the Director must consult with any fisherman, local authorities and other persons likely to be affected by the plan.[144]

Another customary consideration is that certain vessels or fishing activity are exempt from the obligations and operational requirements for local fishing vessels. Licences are not required for a traditional canoe or outrigger; or a vessel which is used solely for subsistence or recreational fishing.[145] This section is a statutory recognition of customary fishing activity; however, its practical purpose is marginal because it is unlikely that the methods and scale of fishing in this context would ever amount to commercial quantities or that traditional forms of fishing would be accessing the offshore resource.

An operator of any foreign fishing vessel must ensure that while in Vanuatu waters, the vessel must be operated in such a way that the activities of local and traditional fishermen and fishing vessels are not disrupted or in any way adversely affected.[146] This is another new requirement under the FA06.

In some of the mechanics of the FA06 there may also be improved opportunity for engagement, at a national level, of representatives of customary knowledge to contribute. For example, the provisions relating to fisheries monitoring, data collection, information sharing and the Fisheries Compliance Unit – require the appointment of an Advisory Board to supervise certain activities. The composition of this Advisory Board leaves a wide discretion for the Minister to appoint “…and such other appropriate persons as the Minister determines”.[147] A representative from the National Council of Chiefs may qualify as an appropriate appointee.

Despite the absolute protection of marine mammals in Vanuatu waters, the FA06 now includes a statutory recognition of a custom right that was absent from the FA82. In strict circumstances requiring notice and the ability of the Director to impose conditions, the taking of dugongs and the importation and possession of a marine mammal tooth may be permitted for “traditional ceremonial purposes”. This term is not defined in the Act and therefore is likely to be considered within the context of an application on a case-by-case basis.

Section 38 (Exemption for Traditional Purposes – Taking of Dugongs and Import of Marine Mammal Teeth) of the FA06 provides that:

“(1) The Director may, if he or she is satisfied that:

(a) The taking of dugongs is required for traditional ceremonial purposes of a person or group of persons; or

(b) The import and possession of a marine mammal tooth is required by a person or group of persons for traditional ceremonial purposes;

Exempt the person or group of persons from the provisions under section 36 of this Act [i.e. Protection provisions].

(2) The exemption under subsection (1) must be in writing and obtained at least 14 days prior to the proposed taking of the dugong or import and possession of the marine mammal tooth.

(3) An exemption given under this section is subject to any conditions specified in the exemption. Such conditions may include, but are not limited to, limits on the size, age, sex, numbers, methods of take of dugongs, the number of marine mammal teeth to be imported and possessed and the provision of relevant data regarding dugong taking and marine mammal teeth importing.”

The FA06 has carried through the prohibition on a known and destructive customary fishing practice recognised throughout the Pacific region - the use of explosives, poison or other noxious substances which kill, stun, disable or render fish to be more easily caught. The level of fine for contravention of this provision has increased 10 times from that under the F82 and also includes a new alternative of imprisonment.[148]

For the establishment of a marine reserve, the FA06 provides a discretion for the Minister to declare any area of Vanuatu waters and the seabed to be a marine reserve, after consultation with owners of any adjoining land.[149] Although not expressly stated, owners are likely to be custom owners of contiguous land areas and/or inshore reefs where a marine reserve would be proposed. The Act and common law principles of consultation do not necessarily require the agreement of the party being consulted in order to establish the marine reserve. However, given the lack of utilisation of this statutory protection mechanism from 1982 to date, it appears that from a practical viewpoint the Minister would not contemplate using these provisions without such agreement. This is because the legal effect is to prohibit any form of extraction from the marine environment and without resource users endorsing the principle of absolute marine protection and agreeing to withhold the exercise of their customary rights for that purpose, then the Minister and his/her Department would otherwise be engaged in extensive monitoring and enforcement roles for the marine reserve concerned.

Despite the lack of use for this statutory marine protection mechanism, Vanuatu has a diversity of village-based marine resource management initiatives. One of the many examples that correlate to the FA06 marine reserve provisions is found on the island of Uri. In 1993, a one hundred hectare reserve area was closed to all fishing for a period of five years. From 2001 and continuing to the present day, this initiative was extended to include a giant clam reserve permanently protected from all fishing and the one hundred hectare reserve area designated as a marine park and permanently protected from harvesting of all species.[150]

The various regulations under the FA82 and carried through into the FA06 concerning fishing conservation measures for certain marine species and coconut crab, are perhaps the main aspect of the fisheries management regime that impact on the inshore and traditional or customary fishing activity within Vanuatu. The regulations do not have any express recognition or reference to customary considerations whatsoever. The conservation measures around controlling methods, size limits, harvest limits (i.e. bag limits), seasonal fishing times and other protection mechanisms for certain marine species are based on contemporary and western fishing management knowledge, science and a regulatory approach which seeks to limit exploitative and unsustainable fishing practices.

“Awareness efforts to educate villagers about national conservation regulations and of their underlying rationale generally led villagers and village leaders to be more aware and supportive of these laws once they were informed of their existence and of the reasons for them.” [151]

Village-based and customary fisheries management is one area of environmental activity that has been the subject of extensive research, education initiatives and fisheries extension assistance around Vanuatu in recent years. As noted earlier in this paper in section 2.1, there are increasing examples of protection and management of marine ecosystems and the exercise of kastom to support marine resource management throughout Vanuatu.

Survey work conducted in 21 villages indicates that between 1993 and 2001, application of traditional and village-based marine management measures had more than doubled. The most common customary measures included fishing ground closures, taboo for the extraction of a specified species (i.e. turtles, sea cucumber), taboo relating to the use of technology or equipment (i.e. spears, nets, hook size), and implementation of controls concerning size and/or quantity of resources that may be harvested.[152]

2.4.3.4 Observations

The reform and introduction of the FA06 has significantly improved the framework for sustainable management of Vanuatu’s fisheries resources. There are new provisions which recognise broader principles of environmental protection and Vanuatu’s contribution to regional Pacific integration and international obligations. However, the commendable improvements to provisions relating to fisheries monitoring and enforcement must be equally matched with administrative capacity and resources at central and regional levels to make it work. It is also likely that Vanuatu will continue for some time to depend on the international arrangements and support from countries such as Australia, France and New Zealand to provide the necessary technology and equipment to regulate fisheries exploitation by foreign vessels in off-shore waters.

One further aspect of the FA06 is that it contemplates and looks towards the future for alternative fisheries development. There is recognition of a new and developing form of fisheries activity - aquaculture (i.e. fishery activity designed to cultivate or farm fish or other living aquatic resources). In my view, aquaculture enterprise for Vanuatu (and the Pacific region generally) provides an exciting opportunity for sustainably and locally based fisheries industry. Aquaculture techniques could be used to replenish and restock near-shore fisheries areas which have been over-exploited and thereby enhancing the long term subsistence fishing and management. Aquaculture could also contribute to wider economic and social-wellbeing of communities whilst being environmentally sustainable by reorientation of the pressure on Vanuatu’s natural fisheries stocks and resources. However, the development of new technologies would require significant investment, research (particularly in relation to the effects of exotic or introduced organisms on the existing marine ecosystem and environment generally), monitoring and education to support community participation.

In terms of the integration of customary issues, it is my view that the FA06 has not improved the situation from the FA82 and there is a lack of formal legal recognition of customary considerations in the interests of a national framework (with the exception of the traditional ceremony right to dugong and marine mammal teeth). There is an improved opportunity to consult and take account of traditional and customary methods or practice in the development of fisheries management plans, however, this is yet to be realised.

Despite the non-recognition of customary mechanisms within the national fisheries regulations, this has not negated the significant renaissance and development of customary and village-based marine resource management in Vanuatu. These initiatives will continue to play a vital and significant role in sustainably managing fishery activity for subsistence and daily existence of the communities supported by enforcement by relevant customary authority and not the state.

When contrasting the village-based and customary resource management techniques with the national fisheries conservation regulations, it is clear there is growing co-existence between the two systems and it does not really matter if that relationship is formal or informal. Arguably, within the fisheries sector Vanuatu has discovered that supporting awareness and participation at community levels, is providing examples of environmentally sound management whilst at the same time operating in the national interest as a more cost effective and viable solution than imposed statutory regulation, management structures and enforcement. This approach is more developed with fisheries compared with other natural and physical resource sectors in Vanuatu and this could provide the foundation, experience and trust to extend community based management into other environmental sectors.

2.4.4 WATER

2.4.4.1 Background

In Vanuatu, the domestic water supply is provided from both ground and surface water resources. Within urban areas, the main source of water comes from the ground where as for the rural and village communities, the various sources of water include wells, springs, rivers and the collection of rainwater. In terms of supporting agricultural activity, the natural water supply and events are relied upon combined with limited irrigation for stock and crops during the dry seasons. Some major root crops are developed within swamp or wet areas with naturally running water.

“Apart from the two urban water supply systems [Port Vila, Efate and Luganville, Santo], most rural water supply systems are quite poor or do not exist… An estimated 45% of ni-Vanuatu populations in the rural areas are still without portable water systems, which although available is insufficient such as during droughts or prolonged period of dry season and subjected to bacterial contamination during wet season.”[153]

The management, use and protection of water resources are a relatively new concept for environmental management within Vanuatu. Water quality monitoring activity is poor which reflects the lack of resources and capability of both Government and private sector interests involved in the supply of water. More particularly in the two main urban centres, storm water is contributing to the pollution of rivers, streams and lakes causing water to be contaminated for human consumption.

The quality of water is critically linked to human health and consumption of contaminated water causes intestinal infection and diarrhea diseases. There are also low levels of public awareness regarding the safety and quality of water resources.

In Vanuatu, there is no local or provincial Government responsibility for the operation and maintenance of rural water supply systems. The Port Vila urban water supply is managed and operated by a private company (UNELCO) through a concession agreement with the Government. The Luganville urban water supply is managed through the Ministry of Infrastructure and Public Utilities.[154]

Generally speaking, the management, use and protection of water resources are in its infancy within the country. National quality standards are yet to be developed; some commentators consider that the powers and responsibilities in the water sector are not clearly defined; and there is no environmental health policy for the water sector. Given these limitations, the key themes and future policy focus of Vanuatu’s Department of Geology, Mines and Water Resources (DGMWR) is critical and commendable to support the sustainable management of water resources.[155]

2.4.4.2 Assessment of Legislative Provisions

The overall responsibility for water resources management rests with the DGMWR which is a separate department under the Ministry of Lands and Natural Resources. On the other hand, the public health aspects relating to water are managed through the Ministry of Health. The key pieces of legislation affecting water resources are the Public Health Act [No.22 of 1994] and the Water Resources Management Act 2002 [No. 9 of 2002].

The Public Health Act (PHA) contains a dedicated chapter about the “Provision and Protection of Water Supply”. Overall, the provisions put in place obligations for the Ministry of Health in relation to the safe and sufficient supply of water for domestic purposes. In summary, the main aspects relating to the water sector under the PHA include the following:

· Administrative powers for the Minister of Health for supervision and inspection over local authorities in all matters relating to maintenance and promotion of public health;

· The provision of proper and sufficient supply of wholesome water to all buildings and premises within a municipal council area and to all inhabitants of the rural area within a local Government council area;

· Powers of environmental health officers to enter any premise and land for the purposes of water sampling, examination of the source of water supply, and to inspect the appropriateness and adequacy of sanitation systems;

· Obligation to maintain clean conditions and protection from contamination of any storage of water;

· Powers of local authorities to examine sanitation and water supply apparatus and facilities; and

· Discretionary power of the Minister of Health to make regulations for giving effect to the Act, in particular relating to the standard, quality and adequacy of water for domestic purposes; and for the control and maintenance of environmental health quality in matters to prevent soil, water, noise and air pollution.

As noted earlier, the environmental management of water resources in Vanuatu is a relatively new concept introduced under the Water Resources Management Act (WRMA) in 2002. The purpose of the WRMA is to provide for the protection, management and use of water resources of Vanuatu and the Act applies to all water in Vanuatu.[156]

Subject to the WRMA, water may be used for any purpose. The legislation expressly reserves both the rights of custom landowners and the existing lawful use rights of occupiers of land for their respective customary use and/or non-commercial extraction of water. The WRMA establishes a National Water Resources Advisory Committee and contemplates the development of a National Water Resource Management Policy and Plan. It also allows for the establishment of Local Water Management Committees.[157]

With specific reference to environment protection for water resources, the significant elements of the WRMA include the following:

· Assessment criteria for consideration of applications for use of water or works – Applications must meet all of the following criteria - consistency with any National Water Resource Management Policy or Plan; the proposed water use is not likely to create a water shortage; is not likely to create a health nuisance; is not likely to adversely affect other lawful users of the water resource; is not likely to damage the water resources or its environment; is compatible with other uses of water in the immediate area; and is consistent with regulations (if any).[158]

· Water Protection Zones – Declaration of a Water Protection Zone for conserving or protecting any significant water resource; conserving or protecting any water resource used or intended for water supply; promoting the protection, management or use of water in rural and urban areas; or for dealing with any emergency which may affect the supply of water.[159]

· Public Education Programme – Where a Water Protection Zone has been declared, there is a mandatory obligation for a programme of public education and consultation to be put in place to increase the local understanding of the reasons for water protection. As well, for the purpose of advising and/or assisting in managing the water protected area, the Director may establish either a Local Water Management Committee or an Advisory Committee or Group in relation to the zone.[160]

· Directions and Acquiring Interests in Land – The Director may give a written direction to any person to take specified measures within a stated timeframe for the protection, management or use of water; or the provision of any water supply or other services under the legislation. Where a person unreasonably refuses or fails to comply with any direction, the Director has discretion to enter upon land and take the appropriate measures and recover the reasonable costs from the non-complying person. Subject to any other enactment, the Minister may acquire an interest in land on behalf of the State for the protection, management or use of any water resource.[161]

The legislation also includes powers of regulation for the Minister to give effect to the purpose and provisions of the WRMA. The regulation powers are wide ranging, including regulating for the establishment of water quality standards, guidelines and criteria, and prescriptions for water testing and monitoring. Furthermore, the Minister has another discretion to make regulations jointly with other Ministers for public health protection; the protection of freshwater and seawater fisheries; water supplies under forestry covenant (including standards for watercourse crossings during forestry operations); and the control of pollution or contaminant discharges into water.[162]

Lastly, the protection, management and use provisions under the WRMA are backed up by stringent offence provisions (including a continuing offence provision for each day an offence is committed or continuing). The penalty provisions are also noticeably strict and following general principles of environmental legislation are designed in the strict liability sense and to act as a deterrent for non-compliance with the requirements of the legislation.[163] Penalty for an individual is a fine of not more than VT1,000,000 or to imprisonment for a period of not more than 2 years, or to both. In any other case (i.e. company or organisations) the penalty is a fine of not more than VT5,000,000. To date there have been no prosecutions under the WRMA.

2.4.4.3 Customary Considerations

The WRMA contains express statutory recognition and provision of customary use rights as it relates to water. “Customary use” is defined in the WRMA to mean a use recognised as customary by the landowners of an area, and includes non-commercial crop irrigation. As well, an “Occupier” is defined to mean in relation to land or premises, the person in occupation or entitled to be in occupation of that land or those premises.[164] In a traditional and customary setting, it is possible for occupation rights to be given over customary land of another.

Section 4 (Customary Rights and Rights of Occupiers) of the WRMA provides that:

“(1) Every person may continue to use water without further reference to this Act if:

(a) No other custom users of the same water resources are adversely affected by that use; and

(b) The use of that water is for a customary use.

(2) The occupier of any land can use any water on, adjacent to, or under that land for domestic and stock purposes, if no other lawful users are adversely affected by that use.

(3) If any lease made under the Land Leases Act [Cap 163] grants the right to use any water, the lessee:

(a) Is entitled to use any water on, adjacent to, or under that land in accordance with subsections (1) and (2); and

(b) Must apply to the Director for the right to use water for any other purpose.”

In terms of the assessment criteria relating to an application for use of water or work, it is noted that the WRMA does not expressly identify customary use as a relevant consideration. However, it could be argued that the statutory requirements to be satisfied that the proposed use of water is not likely to adversely affect other lawful users of the water resources; and is otherwise compatible with other uses and works in the immediate area – are broad enough to encapsulate customary considerations or at least the potential effects on existing customary use rights.[165]

The WRMA provisions in relation to the establishment of the National Water Resources Advisory Committee are silent in terms of the composition of that committee requiring any form of customary representation or authority. The composition of this national committee is the Director (as Chairperson) and the appointment of five additional members by the Minister on the recommendation of the Director. In determining the composition of the committee, the Minister and/or Director must take into consideration the merits of candidates with respect to the relevant technical, legal and commercial water issues to be addressed; the needs of water consumers (including utilities and the commercial sector); and the need to ensure the fullest possible co-operation and co-operation on water resource issues.[166]

It appears that the WRMA contemplates and opens the opportunity for customary representation and the potential application of traditional or customary water management techniques to be applied through the establishment of Local Water Management Committees. In this context, a landowner or a group of landowners can establish, and the Director can promote, a Local Water Management Committee for any water resource on or under land for the purposes of implementing water supply conservation measures or a water management scheme. Such a committee must be registered with the Department for establishing any water management scheme; and to be eligible for any Departmental assistance for the assessment, conservation or management of any water resource.[167]

The development of National Water Resource Management Policy and/or Plans developed under the WRMA must be developed through appropriate “public consultation”. However, there is no further statutory process or guidance in the legislation in relation to the scope, process, nature or parties considered relevant for adequate or informed public consultation in a public law or administrative law sense.[168]

The only other reference to customary use (and/or domestic uses such as washing and swimming areas) under the WRMA sits within the Director’s power to declare Water Protection Zones. As noted earlier in this section, a Water Protection Zone may be declared for conserving or protecting any significant water resource; conserving or protecting any water resource used or intended for water supply; promoting the protection, management or use of water in rural and urban areas; or for dealing with any emergency which may affect the supply of water.[169]

Section 26(3) of the WRMA (Declaration of Water Protection Zone) provides that a declaration must only be made if [emphasis added by underlining]:

“(a) The Director is satisfied that all reasonable steps have been taken to inform any local Government or municipal council, local water management committee or landowner about the Zone and the reasons for the proposed declaration; and

(b) The local Government or municipal council, local water management committee or landowner agree to the proposed declaration; and

(c) Compelling reasons exists to declare the Zone despite failure to obtain the agreement of a local Government or municipal council, local water management committee or landowner; and

(d) Appropriate alternative arrangements are made, as necessary, for customary and/or domestic uses such as washing and swimming areas.”

2.4.4.4 Observations

The introduction of water resource management legislation in 2002 has paved the way for Vanuatu to more effectively provide for the protection, management and use of water resources for the country. The WRMA is a comprehensive and modern form of environment legislation that provides a planning framework at a national level with management frameworks at a local or community level. Although not as extensive as requiring a full environmental impact assessment (EIA) for water resource use, there are valid assessment criterion to assess applications for water resource use or works associated with water.

The provisions for establishing Local Water Management Committees and declaring Water Protection Zones are proactive and engaging. In both contexts, it is highly probably and possible for customary representation, community participation and the incorporation of traditional or customary environmental management techniques within a local management plan of relevance to the particular locality and resource.

In terms of the integration of customary issues, it is my view that the WRMA is neutral in a statutory sense because it recognises and preserves existing customary uses so far as there is no other customary user or dispute over the same water resource; and provided the customary use is non-commercial for crop irrigation. For a Water Protection Zone, further respect and recognition of the importance of customary use is provided by the requirement to design appropriate alternatives to offset the need for protection.

The water resource management legislation is also neutral because it does not displace the presumption of customary ownership of water resources. The WRMA respects customary ownership in the way that it contemplates participation and/or customary landowner approval in the case of protection mechanisms. However, in the context of development or use water for commercial activity, the management regime is devoid of any statutory requirement for customary landowner approval to harness water. Therefore, one may presume that this opens the avenue for an owner of the water to control physical access and rights to the water or to require compensation, monetary consideration or perhaps other environmental mitigation to protect the resource - through negotiation and/or contractual arrangements between the developer and customary owner of the water resources.

“Water is one of the few minerals which does not vest in the Government by operation of law. Thus, rights in it remain at the disposal of custom owners of land, who may grant extraction and other rights to lessees and third parties. Where land is leased under one of the standard forms used by the Department of Lands, the custom owners retain rights to bath, fish and extract water for domestic purposes provided that the exercise of these rights does not interfere with the purposes for which the lease has been granted. Customary law principles governing the use which custom owners may make of water and the extent to which they are obliged in quality or flow-rate seem to be highly variable and little-documented, even in respect of water courses running on the surface and scarcely to exist at all in respect of groundwater flows. At any rate, it would appear that, perhaps untypically in this area custom rules are unlikely to supply the defects in formal legislation. Even if there were to do so in rural areas, however, it would appear beyond question that custom rules would be unequal to dealing with the control of water quality and supply in urban concentrations”[170]

From a practical implementation viewpoint, the WRMA does not direct but rather allows flexibility for integration or co-existence of customary matters (i.e. in the respective planning frameworks, representation and/or management at local levels). However, there are considerable discretions for the Minister and/or Director in implementing the legislation combined with a need for enhancing education and public awareness of the value of water resources as a fundamental part of the environment and sustainable development. These challenges may be intensified by lack of resources and/or capacity within the responsible Department and the limits of available scientific monitoring data and information for effective and informed decision making for water resources.

2.4.5 TERRESTRIAL BIODIVERSITY (FLORA AND FAUNA)

2.4.5.1 Background

The older and larger islands of Vanuatu support a greater diversity of terrestrial ecosystems and subsequently a wider diversity of flora and fauna – plants and animals. The geographical conditions of Vanuatu have generally contributed to rapid sub-speciation and speciation because the large areas of ocean separating the many islands, the rugged interiors which separate catchments and lowland habitats are barriers for many species. On smaller islands in particular, the frequent disruptions to the environment from tropical cyclones and/or volcanic activity significantly affect the abundance and distribution of species.

Vanuatu’s biodiversity remains poorly known and human population pressures with conversion of natural systems to human production systems is recognised as the most significant threat to biodiversity in Vanuatu. Other threats to flora and fauna vary from island to island, but include the presence of a number of invasive species; burning; land use activities and clearance; land based pollution and failure of local communities to highly value the species they do not otherwise use.[171]

Commentators describe Vanuatu’s wildlife as “not particularly exciting or exotic”. However, the biodiversity of Vanuatu is very important for a number of reasons:

· There is a high incidence of endemic species, which occur in all groups of terrestrial plants and animals;

· Some species are not only rare or threatened, but occur in Vanuatu at the extremes of their range; and

· Biodiversity represents an immensely important resource for people and communities for food and/or food preparation (i.e. firewood), clothing, housing materials, and in the cultural and religious significance of many species for ni-Vanuatu kastom and cultic use. [172]

Vanuatu’s first and current National Biodiversity Conservation Strategy (November 1999) was developed as part expression of international obligations to develop a strategy and action plan to manage and conserve Vanuatu’s biological diversity (i.e. under the Convention on Biological Diversity (CBD) which has been referred to in section 2.3.1 of this paper). The national strategy identifies the significant elements of terrestrial, freshwater, coastal and marine biodiversity, places and habitats of conservation significance and biodiversity management challenges throughout the six provinces of Vanuatu.

The six main objectives (and subsequent priorities) outlined in the strategy are forward looking and premised on sustainability, capacity building and participatory environmental approaches.[173] The strategy recognises that conservation of biodiversity is an ongoing and evolving process and priorities in the strategy have been accorded to activities that are affordable, within the capacity of existing Government or community institutions and that meet established needs.

The mission statement and overall goals of the national strategy include:[174]

· To manage and safeguard biological resources through Government, provinces and local communities so as to maintain fully our natural and cultural heritage for all ni-Vanuatu;

· Guide Governments, provinces, local communities and landholders to sustainable management of Vanuatu’s natural resources;

· Ensure that all ni-Vanuatu, including future generations, are able to benefit from biodiversity and enjoy its use; and

· Protect the custom, intellectual and legal rights of ni-Vanuatu as resource custodians and users.

2.4.5.2 Assessment of Legislative Provisions

There is a mix of old and new legislative provisions that influence the protection of biodiversity in Vanuatu. The older legislation is premised on demand or control mechanisms which have been largely ignored and unenforced. This situation may have occurred because of the combination of the lack of resources to enforce, as well as the regulatory style of protection for certain species does not necessarily reflect or correspond with kastom and the practical reality of food and biodiversity dependence in village communities.

More recently, Vanuatu has introduced framework environmental legislation which seeks to overcome this divide with the introduction of sustainable development principles and holistic protection mechanisms which empower local communities to make their own choices regarding use, management or protection of biodiversity in their own way.

The protection of wild bird life in Vanuatu is afforded under the Wild Bird (Protection) Act 1962 [Cap 30] (WBPA). This Act sets up a regime of protected and/or limited protected bird species whereby it is unlawful for any person to kill, wound, capture or take the eggs of those species without first obtaining a written permit from the Director of Agriculture.[175]

The WBPA also imposes closed seasons for eleven other bird species, including doves, other ducks and the incubator bird (megapode).[176] In relation to the limited protected bird species and during the three month hunting season, the WBPA imposes a limit of hunting no more than 10 birds of the same species within any given day; and the Minister also has a broad discretion to prohibit hunting of any species on any specified island for a period long enough to allow re-establishment of the population of that or those species.[177] It is also unlawful to engage in the sale, attempted sale, purchase or export of protected species; and the importation or purchase of any trap, net or other device designed for the capture of birds requires a permit.[178] Lastly, another curious control under the WBPA it is unlawful throughout Vanuatu at all times and for any species of bird (whether protected or not) to hunt during the night.[179]

Powers of enforcement under the WBPA are given to officers of the Police Force, officers of the Department’s of Agriculture and Customs, and any person appointed as a voluntary game warden for the purposes of the legislation. An offence or non-compliance is liable to a fine not exceeding VT10,000 or to a term of imprisonment not exceeding 8 days, or both.[180]

In relation to animals and other fauna, Vanuatu does not have any other forms of legislation or protection mechanisms. Neither is there any legislative reference for protecting invertebrates or insect communities.[181] However, de facto protection or at least managing the potential effects on Vanuatu’s fauna is to some degree achieved through quarantine legislation which requires permits for the importation or introduction of animals, biological products or related articles.[182]

For the purposes of the Animal Importation and Quarantine Act 1988 [Cap201] (AIQA), an animal means any living stage of any member of the animal kingdom (except human beings) and includes arachnids, birds, crustacean, fish, insects, reptiles and also any fertilized egg or ovum. An animal product includes any constitute part of an animal; whereas a biological product means any substance, chemical, organism or micro-organism that could have a biological effect on animals or their products, or capable of causing any disease in animals.[183]

In consultation with the Principal Veterinary Officer, the relevant Minister has discretion to make orders for the purpose of preventing the introduction of disease into Vanuatu by prohibiting the landing of animals which do not naturally occur in Vanuatu. Furthermore, the Minister in consultation with relevant conservation authorities may make orders prohibiting the landing of specified animals or animal products for the purposes of preventing or controlling international trade in endangered wild life species.[184] Non-compliance with the importation and/or quarantine requirements of the AIQA is subject to a fine of VT100,000 and imprisonment not exceeding 6 months.[185]

Vanuatu also has a similar quarantine law in relation to the importation of plants. Under the Import of Plants Act 1964 [Cap 34] (IPA), a person requires an importation licence to bring into the country any live plants or any part thereof (including seeds, tubers, bulbs, ryzomes, shoots, suckers, cuttings, grafts, flowers and fruit; any dry plants); and any other matter capable of containing any organism dangerous to cultivation including soil, compost and manure.[186] In considering an application for an import licence, the Director of Agriculture is required to take into account the special requirements for phytosanitary protection of Vanuatu, the international obligations contracted by the Government, and the recommendations of the phytosanitary committee for the South-East Asia and Pacific areas.[187]

The Minister of Agriculture has discretion to make orders to prohibit absolutely the importation of any plant, part or derivative of a plant. However, the Minister is constrained in this regard because he / she cannot make an order applicable to the Department of Agriculture so long as the importation of the plant is for “scientific purposes”.[188]

The IPA provides the powers of inspection to officers of the Department of Agriculture which must be carried out in the presence of an officer of the Customs or Postal Departments and the importer or his/her representative. Contravention of the IPA is subject to a fine not exceeding VT100,000, and in the case of a second or subsequent offence within 5 years to a fine not exceeding VT200,000 or to imprisonment not exceeding 6 months, or both.[189]

In terms of the AIQA and the IPA, it is arguable that the two legislative regimes have a limited focus on maintaining environmental integrity and on occasions have been the subject to inconsistent application where potential effects from introduced animals or plants is relatively unknown.[190]

“The existing system of controls over agricultural operations in Vanuatu appears to be working smoothly, but it depends entirely upon sensitive manipulation of the system by expert regulators who are anxious to maintain environmental quality. Informal or administrative controls which are not based upon or reinforced by legal requirements are at the mercy of any change of personnel or policy. It is also less than clear that the present system is entirely effective in preventing ill-considered agricultural expansion.”[191]

One of the last older and curious environmental laws of Vanuatu is the Prevention of Spread of Noxious Weeds Act 1966 [Cap 44] (NWA). Like the IPA, it is unlawful for any person to import into Vanuatu any noxious weed or to otherwise propagate, sow, sell or distribute any such weed without the written consent of the Director of Agriculture.[192] The NWA declares some 19 species of noxious weeds throughout Vanuatu.[193]

The NWA provides a mandatory requirement for all occupiers of land across the whole chain of islands of Vanuatu to keep land “entirely free” from specified noxious weeds; and also the occupier of lands on certain main islands must take measures to eradicate or control specified noxious weeds as directed by the Director of Agriculture.[194] There are no obligations or controls in the legislation to effectively manage the transfer or spread of noxious weeds by human intervention, vehicles or other forms of transportation between land areas and/or islands.

The Director may give directions as to the measures to be taken in order to eradicate or control any weed within a specified time period. Offenders under the NWA are liable to a fine of VT50,000 and are not relieved of the obligation to comply with the requirements of the legislation or directions.[195]

As noted earlier in the opening paragraph of this sub-section, Vanuatu has recently introduced new environmental legislation - the Environmental Management and Conservation Act 2002 [No. 12 of 2002] (EMCA). The purpose of the EMCA is to provide for the conservation, sustainable development and management of the environment of Vanuatu, and the regulation of activities that affect the environment.

This legislation is Vanuatu’s modern attempt at integration of environmental management across different sectors as an umbrella or framework type Act. The statutory definition of “environment” has already been referred to in section 1.3 (Methodology and Definitions) of this paper.[196]

The EMCA contemplates a new level of national policy and planning for the promotion of environmentally sound, safe management, conservation of the natural environment[197], and co-ordination of activities affecting the environment.

The initial 1998 draft of the EMCA intended to create a comprehensive legal and institutional framework for environmental impact assessment; disaster contingency planning; pollution control and waste management; the management of dangerous and hazardous substances; the management of natural resources and biodiversity conservation.[198] Due to various constraints (i.e. capacity, resources and possibly political acceptance) the legislation finally enacted is not as comprehensive as first envisaged and thereby leaves some gaps for an integrated environmental approach.

With specific reference to environment protection for terrestrial biodiversity, the significant elements of the EMCA include the following:

· Environmental Impact Assessment – All projects, proposals or development activities which require any license, permit or approval under any law and which impact or are likely to impact on the environment in specified ways require an environmental impact assessment at the cost of the developer.[199]

· Bioprospecting – Concerns the harvest or exploitation of genetic resources and/or the knowledge, innovations and customary practices of communities associated with genetic resources. Establishes a Biodiversity Advisory Council who is responsible for approving applications for bioprospecting.[200]

· Community Conservation Areas – In consultation with custom landowners, sites of unique genetic, cultural, geological or biological resources; or habitat of species of fauna and flora of unique national or international significance, may be protected and registered as a Community Conservation Area.[201] For these areas, the EMCA only provides the status and registration of the area and requires the development of a conservation, protection or management plan by the custom landowners and/or affected local community to give effect to sound conservation objectives and community rules.[202]

The legislation also includes powers of regulation for the Minister to give effect to the purposes and provisions of the EMCA. In terms of environmental protection, that may include promoting standards, guidelines or codes of environmental practice, establishing conditions or model agreements for bioprospecting, controlling the taking or use of specified species, and providing for the registration of Community Conservation Areas. Furthermore, the Minister has another discretion to make regulations jointly with other Ministers for the purpose of regulating environmental effects of the importation or transportation of hazardous substances, the proposed importation of foreign organisms, pests and weeds, waste management, air and water pollution, regulating the harvesting of marine resources, and providing for the containment, isolation, seizure, transportation, safe-keeping or disposal of any species of wild flora or fauna.[203]

Lastly, the conservation, sustainable development and management of the environment provisions under the EMCA are very similar to the WRMA and backed up by stringent offence provisions (including a continuing offence for each day an offence is committed or continuing). A person guilty of an offence under the EMCA is liable to a fine of not more than VT1,000,000 or to imprisonment of not more than 2 years, or to both. In contrast to the WRMA, there is no separate or higher fine regime for a company or organisation.[204]

2.4.5.3 Customary Considerations

Under the EMCA, the first reference to customary issues is found in the definition of the “environment” which includes “cultural” systems as a component and interacting part of the elements which define the environment. This is significant because it validates culture as a relevant consideration across the range of provisions and subsequent implementation of the legislation. It may have been helpful to also define or use the term “custom” because that is the predominant term used throughout the legislation.

As well, the EMCA defines “traditional knowledge” to have the same meaning as indigenous knowledge in the Copyright and Related Rights Act [No. 42 of 2000]. The value of this definitional linkage maybe somewhat limited under the EMCA because albeit the copyright legislation was assented to 29 December 2000, it has never commenced. Despite this technical deficiency, traditional knowledge is referred to in the EMCA only within the division concerning bioprospecting.

An applicant for a bioprospecting permit must include in their application a description of the nature of traditional knowledge that is to be investigated. The Biodiversity Advisory Council (who has the power to approve, refer back to the Director for further assessment, or reject an application for bioprospecting) must be satisfied that a legally binding and enforceable contract is concluded with the custom landowners, or any owner of traditional knowledge with regard to the rights associated with acquisition of biological resources or traditional knowledge.[205] This appears to be Vanuatu’s domestic expression for avenues of benefit sharing or equitable arrangements in relation to biological resources and associated traditional knowledge which is encouraged under the International Convention on Biological Diversity (CBD).

In relation to the Director’s obligation to establish an Environmental Registry and maintaining records under the EMCA, the Director may decide if any material in the registry is “culturally sensitive” and accordingly he / she can classify all or part of that information as confidential and control access and disclosure of such material.[206]

The national planning and policy regime contemplated under the EMCA requires that the National Policy must include an evaluation of the social, human health, custom, economic and ecological considerations and issues concerning the environment.[207] The obligation for the Director to prepare and publish a National State of the Environment Report does not include a mandatory requirement to address culture, custom or traditional matters. However, these considerations could naturally and inevitably fall within other categories required to be reported (such as review of the current use of natural resources and social and economic development trends as they relate to customary engagement or utilisation of natural resources to sustain economic related activities).[208]

In terms assessment under the EMCA, all projects, proposals or development activities that cause or are likely to cause significant environmental, social and/or custom impacts are subject to the environmental impact assessment (EIA) provisions of the legislation.[209] This requirement is further qualified in that all projects, proposals or development activities that will do or are likely to affect important custom resources are also subject to the requirements of EIA.[210] In order to provide a robust EIA it has to be presumed that an applicant would consult with a potentially affected custom owner/s of natural resources in relation to a development proposal. However, this presumption is not supported by any mandatory consultation requirement under the EMCA.

The EMCA expressly exempts some custom related buildings from the requirements for EIA. In particular, the construction of traditional or custom structures fabricated from traditional materials is exempt from the requirements of EIA provided that any natural rock, sand, coral, rubble or gravel that is used for construction must not be taken from within 20 metres of the line of mean high water springs tide.[211]

The only consultative requirement of the EMCA that may be influenced by customary considerations relates to the Director’s obligation to develop a “terms of reference” for any work that is to be undertaken for an EIA, including a description of the scope of work required. In developing a terms of reference, the Director must give special consideration to the need for consultation, participation and involvement of custom landowners, chiefs and other interested parties. The Director may also consult with the National Council of Chiefs for this purpose.[212] Terms of reference are most likely to be used as part of a pre-application phase for large or significant development proposals. Provided the Director uses his/her discretion in a reasonable and open manner, then early identification of custom issues and/or the involvement of the natural resource owners at an early stage of a development proposal is likely to contribute to an application and environmental impact assessment that will assist informed decision-making and withstand judicial challenge later in time.

The last and perhaps the most significant recognition and integration of customary considerations comes under the Community Conservation Areas (CCA) provisions of the EMCA. The Director can negotiate with custom landowners for the protection and registration of any site as a CCA, where he / she may be satisfied that the site possesses unique genetic, cultural, geological or biological resources. Furthermore, CCA protection and registration under the EMCA may be afforded to a site that merits protection under the Convention Concerning the Protection of World Cultural and Natural Heritage.[213] In this regard, the EMCA contemplates domestic alignment and registration of a site that has customary significance recognised by the international criteria of the Convention.

These CCA provisions are the main legislative protection mechanism for biodiversity of national and/or regional significance to Vanuatu. The protection mechanism is premised on the agreement and full participation of the custom owners of biodiversity in order to achieve registration as a CCA. As well, the requirement for consent from all persons having rights and interests in the locality will, in some cases, require approval from third or external parties who may exercise customary or traditional rights not being the custom ownership of land or biodiversity.[214] Prior to registration of a CCA, an appropriate conservation, protection or management plan must be developed to ensure the achievement of identified conservation objectives.[215]

The EMCA does not provide any statutory criteria for what must be included in a conservation, protection or management plan. The only EMCA guidance is that a plan must accord with sound conservation practices.[216] In practical terms, the plan developed by or on behalf of the custom owners and communities within the CCA will be the platform for the continued interaction of communities with their biodiversity. This bottom up approach to environmental management is very likely to result in plans which record the key customs and traditional management systems that will operate. Custom based techniques might also be integrated with contemporary environmental techniques.

From an environmental regulation perspective, the plan having been empowered and owned by the affected community could also be more rigorously monitored and enforced by the community, the designated customary authority or structure agreed by the respective community.[217] It is too soon to measure the results of the CCA regime under the EMCA, but it is very encouraging to see a community and custom based protection mechanism that will have the potential to more significantly enhance biodiversity protection as compared with an imposed model of environmental management.

2.4.5.4 Observations

Vanuatu’s environmental framework legislation, like the introduction of the water resource management regime in 2002, has paved the way for the country to integrate sustainable management of the environment as a comprehensive whole.

The EMCA is a modern form of environmental legislation which incorporates a national planning framework with conservation area protection, management and enforcement at a local or community level. The requirement for environmental impact assessment is a new and significant planning tool whereby implications and effects on customary landowners and resources are a valid consideration to contribute towards informed decision-making for resource use and development.

The provisions for Community Conservation Areas are proactive and acknowledge the fundamental position for community ownership, planning and management of their land and natural resources in ways designed by collective responsibility. Through this mechanism, communities now have an effective tool to integrate traditional and customary issues with contemporary environmental management approaches, if they so wish.

In terms of integration of customary issues, Vanuatu’s laws surrounding terrestrial biodiversity demonstrate an interesting phenomenon. The older and existing laws which are devoid of recognition of kastom and which do not integrate with community values and uses of flora and fauna, will not surprisingly sit on the statute books unenforced and gathering dust. In contrast, the EMCA respects customary ownership, acknowledges the importance of people and communities’ relationships with their environment and encourages community participation and management of biodiversity. There is still a long way to go in terms of full engagement and implementation of this community based environmental opportunity in Vanuatu. It will be very interesting to see over time (particularly as custom land ownership disputes are finally settled) how village communities may utilise these provisions for expressing and formalising a co-existence between their traditional and customary management with the statutory recognition for biodiversity protection. It is my feeling and observation that there are high expectations for the EMCA in this regard.

PART 3

3.1 VATTHE CONSERVATION AREA

3.1.1 Locality and Background

The Vatthe Conservation Area (VCA) is located at the southern end of Big Bay in the northern part of the island of Espiritu Santo. The area covers approximately 3,700 hectares of lowland alluvial rainforest occupied by several villages and encompasses 75% of Vanuatu’s native land and freshwater bird species, and 42% of Vanuatu’s reptile species. It has a range of habitats not found together in any other island of Vanuatu.

VCA was established in 1993 following a biodiversity survey carried out by the Vanuatu Environment Unit (VEU) and the Royal Bird and Forest Protection Society of New Zealand (RBFPS) supported by SPREP funding. The survey also included a sociological component to assess the uses and values of the forest area for the peoples of Matantas and Sara villages. In November 1993, the VEU and RFBPS presented a concept paper to the South Pacific Biodiversity Conservation Program (SPBCP). Subsequently, further funding became available through that programme to conduct a feasibility study for protection of the area and to investigate alternative income generating activities.

As well, workshops were held with the affected communities to generate greater awareness of the options for environmental management and to obtain community input for the design of the VCA. As a result of this work, the two landowning communities have developed eco-tourism activities within the VCA as an alternative to commercial logging. From 2003 until today, the Vatthe Lodge and its income (generated largely from eco-tourism and nature conservation activity) provide the financial support for the VCA.

The VCA is held under customary land ownership by the two villages of Matantas and Sara[218], who have had historical, religious and cultural divisions over the land and resource use of the Vatthe forests. However, internal community cooperation has improved over time (and a long period of customary ownership litigation ending in the Court of Appeal). Both communities are fully represented in the decision-making body for the VCA.

3.1.2 Environmental Context and Significance

The conservation area has unique ecosystems of national and regional importance to Vanuatu. The environmental and ecological importance of the Vatthe forests includes the following:

· The largest remaining intact, virtually continuous area of forest on alluvial plains in Vanuatu and is the only area of such forest to extend to the coast;

· The forests on the little dissected stepped limestone terraces represent the largest intact area of forest on this landform with predominantly eutropept soils;

· The swamp forest represents the largest area of intact swamp forest in Vanuatu;

· The forests contains a biodiversity of landforms and habitats, including part of the Jordon Rivers (Vanuatu’s only braided river), a lagoon, alluvial plains, limestone terraces and plateaus;

· The forests contain the most species and rich populations of flora and fauna, including native land and freshwater birds and five of Vanuatu’s endemic bird species;

· The forests have outstanding natural beauty and provide a significant backdrop for public enjoyment, eco-tourism activities, and potential scientific study; and

· The forests support living communities and provide important cultural and sustenance uses for maintaining the quality of life for the peoples of Matantas and Sara.[219]

3.1.3 Status and Relevant Legal Provisions

The VCA is a community-based conservation area which when first established was managed under customary law. Subsequently, in June 2004 the conservation area was formally declared and registered a “Community Conservation Area” (CCA) under Part 4 of the Environmental Management and Conservation Act 2002 (EMCA).[220]

Under the EMCA, the Director of the VEU may negotiate with the custom landowners for the protection and registration of any area where he / she is satisfied that the area contains unique natural resources; or provides habitat for species of fauna or flora of unique national or international importance; or where the area merits protection under a specified international environmental convention.[221] The EMCA also provides discretion for the VEU to consult and/or provide assistance to landowners, chiefs and other interested parties in relation to that process. In practical term, assistance may be advisory, technical, facilitation and/or limited financial help.

The criteria for registration under the EMCA are very stringent. Before registering a CCA, the Director must be satisfied that there are clearly identified conservation objectives for the area; that there is accurate identification of the boundaries for the proposed CCA; that there is consent and approval from all persons having rights and interests in the subject land; and that an appropriate management plan is developed to achieve conservation objectives.[222] When all these matters have been met, the Director may register the CCA and issue a certificate of registration to the landowners.[223]

Registration as a CCA provides a legal status or recognition for the conservation area. The legislation does not expressly provide protected legal status per se to the natural resources within the conservation area. The landowners or the management committee formed by the landowners is solely responsible for the development and implementation of their conservation management plan. The EMCA also provides discretion for the Director to provide technical or financial support to a CCA for the purpose of developing or implementing their plan.[224]

On a practical level and in the context of the VCA, further benefits of the CCA status appear to include formal notice of the protected status to other communities and people outside the conservation area; and greater security of a formal and legal protected status in terms of attracting donor and international funding for conservation related initiatives.

3.1.4 Environmental Management Regime

During 2003 and leading up to the application for VCA to be registered as a CCA under the Act, various planning workshops were held within the two village communities. These resulted in the development of the VCA Resource and Conservation Management Plan 2004 (“the plan”) which fulfilled one of the criteria for registration. This plan is effectively the tool by which the communities manage the VCA and give effect to their environmental management aspirations.

Part 1 of the plan outlines the management and decision-making structures for the VCA. The top level or main management committee is the Conservation Area Coordinating Committee (CACC).

The CACC must include one chief, one church leader, one woman representative and one youth leader from both communities of Matantas and Sara villages. As well, the CACC must also have a representative of the VEU – thereby constituting the overall management committee of nine persons with the Chairperson elected by and from within the membership of that committee. The CACC is charged with the overall responsibility, coordination and management decisions in accordance with the management plan and undertakes to operate on a consensual basis.

Underneath the CACC there are two Village Steering Committees to help steer the VCA project within the villages of Matantas and Sara. The steering committees also provide support and advice to the CACC. Each steering committee must have eight village members and like the CACC, the Chairpersons are elected by, and from within, the membership and the committees will strive to operate consensually. Within the steering committees, the structure contemplates constitution of sub-committees to guard and monitor dedicated environment or business projects within the VCA.

Both the CACC and Village Steering Committees have the flexibility to manage their own processes and are encouraged within the plan to design their own standard procedures to assist with their respective roles.

Part 2 of the plan outlines the resource and conservation management objectives for the VCA. These objectives are intended to guide and support sustainable use and management of the natural resources for the conservation area.[225] The specified objectives are then linked to and will be achieved by implementation of management rules.

Part 3 of the plan provides the resource and conservation management rules. The VCA approach for management has been to identify specific zones (i.e. forest, river, saltwater and garden areas). Within each zone, there are precise rules which are intended to regulate the behaviour of people and the communities for the conservation and sustainable use or development of the resources under the respective zone.[226] As well, this part provides rules and guidance for the management committee structures concerning eco-tourism, income generating activities, scientific research and other commercial activities within the VCA.

Lastly, part 4 of the plan outlines the offence and penalty provisions that apply within the VCA. There is an obligation for the CACC to put in place information or publication of the management plan rules in an appropriate manner (i.e. Bislama and/or native language) within the VCA communities. Furthermore, the CACC is obliged to make sure that all outsiders, visitors and tourists who enter the VCA are made aware of the rules and behavioural standards expected in achieving the conservation objectives for the VCA.

3.1.5 Environmental Enforcement and Experience

Part 4 of the plan provides the offence and penalty provisions against the backdrop of the conservation management rules for the VCA. The plan empowers the CACC and/or the two Village Steering Committees to deal with offenders relative to a first, second or third offence.

All fines that may be imposed are to be managed by the CACC and applied to support the conservation objectives within the VCA. There are two penalty regimes – for children under 18 years of age; and adults 18 years and over.[227] This part of the plan corresponds with the premise contained in the EMCA for the management plan and associated rules to be monitored and implemented by and from within the community.

In my view, it is arguable that there may also be an alternative pathway in terms of dealing with offences under the legislation. Under the EMCA, a person who contravenes any term or condition of a registered CCA is guilty of an offence punishable on conviction to a fine of not more than 1,000,000 vatu or to imprisonment for a period of not more than two years, or to both.[228]

In this respect, the conservation management plan and rules therein could be interpreted as a “condition” of registration for a CCA. Thereby, the administering agency of the legislation (i.e. VEU) could have a mandate to prosecute an offender. This avenue may be appropriate where for whatever reason the management plan and/or community-based mechanisms have become dysfunctional or not respected by offenders.[229]

Prior to the VCA’s legal registration as a CCA in 2004, there have been a number of incidences of offending within the VCA that were dealt with by either the management committee at the time or the Chiefs’ of the respective village of the offender. Penalties ranged from community work, monetary fines, and/or payment in the form of an animal (i.e. bullock or pig). It is fair to say that there were very inconsistent approaches to offending and penalties. Depending on which authority dealt with the matter – the penalty imposed in some cases came back to support the conservation initiatives within the VCA or otherwise became a personal benefit of the Chief concerned. This adhoc approach tended to undermine the enforcement of customary rules and respect by individuals and communities alike to adhere to sound conservation ethics.

However, from 2004 and post-registration of the CCA the predominant experience within the VCA has been alleged offending only by individuals belonging to villages outside the boundaries of the VCA. At the time of writing, there have been 18 complaints of alleged offending reported which included trespassing, illegal fishing from the Jordon River, and illegal killing of wild bullock and/or birds within the forests of VCA.

These alleged offences have created a further challenge for the CACC and/or village steering committees in terms of implementing the VCA conservation management plan and associated rules to persons outside of the VCA boundaries. The VCA has called community meetings between the committee/s, the alleged offender/s and their village Chiefs’ in an effort to apply part 4 of the conservation management plan. To date, there has been very limited cooperation and subsequently the CACC resolved in June 2005 to report the offenders to the VEU, Vanuatu Police and Public Prosecutor for further action.[230]

3.1.6 Concluding Comments

The VCA is the first customary owned and community-based conservation area in Vanuatu to utilize the formal legal registration process as a CCA under the Environmental Management and Conservation Act 2002.

The stringent statutory criteria for registration as a CCA means that in practical terms, communities have resolved any customary land ownership dispute/s and have turned their minds to cooperatively developing, monitoring and implementing a conservation management plan that is likely to reflect their own customary values, rules and processes.

In the context of VCA, there has been significant access to funding and/or other technical support to get to this stage. There may be future challenges and situations in Vanuatu for other proposed community conservation areas without such support to satisfy the necessary criteria and qualify for registration.

Registration as a CCA and constitution of coherent management structures and lines of decision-making, have given further assistance to environmental protection and enforcement within VCA communities. However, the flipside has been alleged external offending yet to be dealt with.

Clearly, there is scope for greater public awareness and education outside the boundaries of the VCA concerning the CCA status and management plan and associated rules. Success of environmental enforcement according to customary processes reflected in the provisions of the conservation management plan for the VCA will only be effective when outside Chiefs’ and communities also respect that plan. In the alternative, the VCA committees will have no option but to resort to the outside legal processes of civil and/or criminal law. In this regard, VCA communities might also need the further support from the VEU and others to obtain successful outcomes which reinforce, not undermine, the CCA status for this unique area of biodiversity in Vanuatu.

Figure 2: Visitor entrance signage to Vatthe Conservation Area, Santo (2004).

Figure 3: School holidays Environment Camp held at Vatthe Conservation Area, Santo in December 2004. The writer with students playing the “Web of Life” ecological principles game - which demonstrates the interconnectedness of components of the environment.

3.2 LORU PROTECTED AREA

3.2.1 Locality and Background

The Loru Protected Area (LPA) covers 220 hectares of lowland rainforest on the east coast of the island of Espiritu Santo. It is one of the last areas of intact forest on the east of the island and supports a rich diversity of species, including a number of important endemic and restricted ranges of animals, trees and birds of Vanuatu.

Coconut crab was the first species to be afforded protection by the local Chief Kaleb Kaleskau after he discovered a number of undersized coconut crabs killed and abandoned on his land. With extensive commercial logging operations underway in the nearby vicinity, he then decided to extend the protection to include an area of rainforest and fringing marine reef to help ensure future generations would have the chance to experience the natural forest known locally as "dark bush". The area was named “Loru” after the limestone caves within the LPA. The LPA received an official launch and protected status by high chiefs, councilors and Government officials at a customary ceremony held in April 1995.

Adjacent to LPA is the Loru Environment Centre. Started in response to numerous requests for advice that were received after the launch of the LPA, the Loru Environment Centre provides an ideal setting for local people to explore and develop solutions to environmental challenges. Styled as a traditional meeting house or nakamal, it also houses a small environmental library to help visitors understand the environmental issues and challenges for the LPA.

3.2.2 Environmental Context and Significance

Like the Vatthe Conservation Area, the LPA is of regional and national environmental significance to Vanuatu. However, one of the differing and unique features of the LPA is that the area has been afforded an absolute protected status for all biodiversity within the LPA boundaries. There are no villages or communities living within the LPA and all living and subsistence activities for the nearby villages of Khole occur outside the boundaries of the LPA. The main area of environmental surveying and research in terms of recording the environmental significance of the LPA relates specifically to the bird wildlife present as follows:[231]

Scientific Name	English Name	Status
Ardea sacra	Eastern Reel Heron
Circus approximans approximans	Swamp Harrier
Palco peregrinus	Peregrine Falcon	App I, O
Megapodius layardi	Vanuatu Megapode	RR, V, E
Gallus gallus	Red Jungle Fowl	I
Gallirallus philippensis	Buff-banded [Banded] Rail	O
Ptilinopus greyii	Red-bellied Fruit Dove	RR
Ptilinopus tannensis	Vanuatu, [Yellow-headed] Fruit Dove	RR, NT, E
Ducula pacifica pacifica	Pacific Imperial Pigeon
Columba vitiense leopoldii	White-throated Pigeon
Macropygia mackinlayi mackinlayi	Rufous-brown Pheasant-dove
Chalcophaps indica sandwichensis	Green-winged Ground lEmerald] Dove
Trichoglossus haematodus Massena	Rainbow Lorikeet	App II
Tyto alba	Barn Owl	App II, O
Collocalia esculenta uropygialis	White-bellied [Glossy] swiftlet
Halcyon chloris	White-collared Kingfisher
Halcyon farquhari	Chestnut-bellied Kingfisher	RR, V, E
Coracina caledonica	Melanesian Cuckoo-shrike	RR
Pachycephaloidea pectorelis	Golden Whistler
Clytorhynchus pachycephaloides grisescens	Southern Shrikebill	RR
Myiagra caledonica	Broad-billed Flycatcher	RR
Neolalage banksiana	Vanuatu [Buff-bellied] flycatcher
Rhipidura fuliginosa	Grey (Collared) Fantail	O
Rhipidura spilodera spilodera	Spotted Fantail	RR
Zosterops flavifrons	Vanuatu [Yellow] White-eye	RR, E
Zosterops lateralis	Grey-backed White-eye
Lonchura Malacca	Black-headed Mannikin	O
Acridotheres trisitis	Indian Mynah	I, O
Artamus Ieucorhyncitus tenuis	White-breasted woodswallow

In summary, within the LPA there were 23 bird species identified, with a further six species immediately outside the LPA area. Ten species of birds are classified as restricted-range - including two vulnerable, one near-threatened and five bird species endemic to Vanuatu. Furthermore, three of the bird species within or in close proximity of the LPA are of international environmental significance and listed in various Appendices of CITES.

3.2.3 Status and Relevant Legal Provisions

The LPA is another example of a community-based protected area within the island of Santo. The area is also unique in that there is clear and undisputed customary land boundaries and ownership vested in Chief Kaleb Kalsekau and his family.

Being a discrete area with absolute protected status for all biodiversity within the boundary of the LPA, the area is managed only in accordance with kastom. At this point in time, there are no relevant legal environmental protection provisions affecting the status of the area.[232] Notwithstanding that situation, all national environmental laws and regulations which generally concern species protection apply within the LPA. Since the formation of the LPA, the convention for the area has been to impose rules of kastom which are more stringent than the national environmental laws and regulations.[233]

3.2.4 Environmental Management Regime

As noted earlier, the LPA is managed according to rules of kastom which impose absolute protection for all biodiversity within the area. However, there are two exceptions to this environmental management regime – one being a small and discrete area of coconut trees within the boundary of the LPA used for copra production for members of Khole village; and the other exception is the extraction of fallen dead and/or decaying trees within the boundary of the LPA which is used for firewood and cooking purposes for sustaining visitors to the Loru Environment Centre. There are no freshwater rivers or streams in close proximity to the Loru Environment Centre. The operation of the centre for visitors is dependent on the rainwater supply and/or drums of freshwater brought in from Khole village.

The LPA is managed by a Management Committee consisting of a mandatory position for the customary landowner (Chief Kaleb) and six other members – making a total of seven persons. The six representatives are nominated by the Chief but then endorsed by the communities of Khole’s two villages. The Management Committee meets on a quarterly basis or as required for any urgent business. The committee strives to operate on a consensual basis but a casting vote is reserved for the Chief – who is also the automatic Chairperson of the committee.

Given the absolute protected status for the LPA, the committee business appears to be more concerned with promotion of the LPA for eco-tourism experiences and encouraging use of the area for environmental education. There are a dedicated set of youth who conduct walks and tours within the forest. All revenue from eco-tourism and education activities within the LPA reverts to the Management Committee to sustain the activities and facilities of the Loru Environment Centre. Every visitor to the LPA contributes a 500 vatu entry fee and is encouraged to consider environmental protection for future generations and to mark their visit by the planting of a seedling tree within the boundary of the LPA.

3.2.5 Environmental Enforcement and Experience

Environmental enforcement does not appear to be a major problem within the LPA. This is likely due to factors such as - the LPA being a small and manageable area in terms of size; that there is clear customary authority and respect by villagers; the representative nature of the management structure; and that gardening and all other sustenance activities for the nearby villages are demarcated and managed effectively outside the boundary of the LPA.

The visitor signage to the LPA and Loru Environment Centre clearly states in English and Bislama that all biodiversity within the LPA is protected and that any offending activity against that rule is subject to a 200,000 vatu fine. However, to date there has never been an incident of that fine amount being imposed for environmental offending.

In practical terms since the formation of the LPA in 1995, the two main environmental enforcement experiences dealt with by the Management Committee have included the following:

· Individuals from the Khole villages and/or outside villages trespassing within the LPA and harvesting coconut crab[234]; and

· Commercial logging companies operating under forestry licences within areas bordering the LPA who allow trees to fall within the boundary of the LPA causing environmental damage and/or illegal extraction of trees along or encroaching upon the boundary of the LPA.[235]

3.2.6 Concluding Comments

The LPA is an excellent example of an area of unique and important biodiversity which is protected and managed according to kastom rules and processes. In my view, the success of maintaining environmental protection for the area is related to the LPA being a small and manageable area where active monitoring is possible. As well, the inclusion of an environment centre within the LPA is likely to have contributed to promotion and awareness building within affected and adjacent communities. The centre also provides potential eco-tourism experience and revenue to further support the conservation initiatives for the LPA.

Given that the operative rules of kastom and management structure for the LPA are generally more stringent than national environmental laws and regulations – there maybe some question as to the need and benefits for the customary landowner in formalising a legal protected status under Vanuatu’s legislation.[236]

Other than the statutory requirement to have clearly identified boundaries by way of a legal survey or other means – in my view, there maybe limited advantages in terms of improving environmental protection and/or enforcement for the LPA. In Vanuatu, the benefits of such legal protected status which compliments the kastom management regime appear to be non-legal (i.e. a more formally recognised “notice” of protected status and/or security of that status which is more likely to attract Governmental, donor or overseas conservation funding).

Figure 4: Various conservation area members (including representatives from Loru Protected Area, Vatthe Conservation Area, Araki Island (Santo), Wiawi Protected Area (Malekula), Libenese Protected Area (Malekula), Leviamp II Marine Protected Area (Malekula) and four WTEC Management Committee members). Conservation Area Network Workshop held at Loru Environment Centre in September 2004.

Figure 5: Chief Kaleb Kalsekau addressing students within LPA as part of school field visits in December 2004.

3.3 SPECIES – COCONUT CRAB (BIRGUS LATRO)

3.3.1 Locality and Background

The coconut crab is the largest of all land dwelling crustaceans in the world - reaching weights in excess of five kilograms at maturity. Coconut crab was once widely distributed in the Indo-Pacific region, but their ease of capture and the destruction of their natural habitats are now threatening its survival. Coconut crabs are distributed in tropical islands from the Seychelles in the Indian Ocean to the Tuamotu Archipelago in the Pacific Ocean. The crab requires the protection of crevices, caves and hollow tree stumps, and are common only in coastal forest areas where there is complete cover of bush. The clearing of bush and the introduction of livestock has contributed to the disappearance of crabs from many continental countries in the Pacific region. In Vanuatu, the main populations of the species occur predominantly in the northern islands (i.e. Torres, Banks, Santo, Maewo and Pentecost Islands).

Coconut crab is a very slow growing species. They become sexually mature at approximately six years of age. It takes a male crab approximately 10 years to reach the legal minimum size for capture in Vanuatu; and over 30 years to reach their maximum length of 16cm. Copulation takes place on the land and the female releases her eggs into the sea. At approximately four weeks of age, the juvenile crab enters a sea-shell and emerges from the sea to live in the intertidal zone. At approximately three months of age, the juvenile then moves further inland and adopts a terrestrial habitat. Despite the relatively short lifespan within the marine environment, coconut crab is legislatively defined as a “fish” in Vanuatu.[237]

3.3.2 Environmental Context and Significance

Coconut crabs are a vital resource for many small communities in Vanuatu – as a traditional food source and more recently as an economic resource. The collection and sale of crabs is sometimes the only form of cash-crop available in many remote areas making the conservation of this resource of paramount importance.[238] With financial and technical support from the Australian Centre for International Agricultural Research (ACIAR), the need for conservation of this unique species in Vanuatu was highlighted with environmental monitoring and surveying between 1985 and 1992. Subsequently, a further round of surveying was conducted in 2003 to measure the effectiveness of various management mechanisms that had been introduced under Fisheries Regulations.

Overall, the 2003 survey concluded that coconut crab populations in Vanuatu remained in a vulnerable state; that the effectiveness of management mechanisms appeared to be low to moderate throughout the islands; that there continued to be illegal captures of the species; and that the market demand (mainly for the tourist and restaurant trade in the capital of Port Vila) was close to 45% more than sustainable harvest levels.[239]

3.3.3 Status and Relevant Legal Provisions

Coconut crab is a species of both national and regional importance to Vanuatu. It is also of international significance and in the IUCN Red List of Threatened Species classification system - coconut crab is recorded as “Rare” in three historical scientific studies and has an official ranking of “Data Deficient”.[240]

The first legislative conservation measure for the species in Vanuatu was introduced under the Fisheries Act [Cap 158], the Fisheries Regulations of 1983 and carried through into the new Fisheries Act 2005 (No. 55 of 2005)[241]. Part IV, section 15 of the1983 regulation provides for a 9cm cephalothoracic length minimum size limit for capture; and a prohibition on the collection of egg bearing females. Further legislative protection was introduced under the Fisheries (Coconut Crab) Regulations No. 20 of 1991. This regulation imposed closed seasons and harvest quotas for the northern islands.[242]

The most recent legislative protection mechanism for coconut crab has been introduced for the Santo / Malo Islands under the Fisheries (Ban on Coconut Crabs) Regulation No. 15 of 2004. Notwithstanding the closed season and/or harvest quota under the 1991 regulations, an absolute ban or prohibition has now been imposed.[243]

With regard to all three management and/or conservation measures imposed by the regulations mentioned above, and following the general practice for environmental offences – non-compliance with the respective regulation is a strict liability offence punishable upon conviction to a fine not exceeding 100,000 vatu and/or three months imprisonment.

3.3.4 Environmental Management Regime

The environmental management regime for coconut crab in Vanuatu is primarily one based on regulating for their protection. The various conservation measures of minimum capture size limit, closed and/or open seasons, prohibition of egg bearing females and the new introduction of a ban season – have all been supported by the various environmental surveys. As well, the various mechanisms reinforce protection during the vulnerable periods of the crab’s lifecycle. The regulated approach for management is also a response to Vanuatu’s national fisheries management plan which records the importance of coconut crab as an important ecological, cultural and economic resource for the communities of Vanuatu. At a community level, there also appears to be growing awareness and focus towards protection of the species and encouraging alternative income-generating potential as an eco-tourism attraction. This is also evidenced by some restaurants in Port Vila acknowledging the “endangered” status of the coconut crab and no longer offering the species as a meal or delicacy of Vanuatu.

The protection regulations apply to all citizens of the country and have national application notwithstanding that some islands do not have any known populations. However, there are also some areas where chiefs and/or landowners have imposed a tabu under kastom for protection of the species. There are no definitive records held by the Department of Fisheries for all protected land areas or specific species kastom protections. During the 2004 – 2005 public awareness campaign for the ban season, the Sanma Taskforce[244] was informed of many situations where chiefs and/or landowners have subsequently applied a kastom protection for coconut crabs in order to reinforce the regulations and/or ban season. This approach appears to have also encouraged changing attitudes at community levels towards conservation rather than exploitation of the species.

3.3.5 Environmental Enforcement and Experience

Notwithstanding the 2003 monitoring and survey results for Vanuatu which clearly identified that there must have been “illegal” captures (i.e. non-compliance with various regulations and conservation measures) there has been no formal enforcement or prosecution experience under the 1983 and 1991 regulations identified earlier. This is most likely due to the lack of resources within the Department of Fisheries to deal with enforcement issues. The constraints of limited personnel for monitoring compliance across isolated islands and localities has resulted in a policy within the Department to prioritize and apply their available budget for education, awareness and encouraging voluntary compliance at community levels. However, during the course of community consultation leading up to the introduction of the 2004 ban season regulation for the Sanma Provincial area – there were examples where kastom enforcement occurring independent of the Fisheries Regulations.

Under the Fisheries (Ban on Coconut Crabs) Regulation No. 15 of 2004 there have been recent examples of enforcement. During June and July 2005, the Magistrate’s Court in Luganville dealt with the first ever prosecutions relating to coconut crab.[245]

“Three Santo men have been fined Vt20,000 [plus an additional Vt2,000 court costs] by the Magistrate Court in Luganville for breaking the Sanma Taskforce ban on coconut crab that came into force in 2004. The Magistrate’s Court ordered two Khole men to pay a fine of Vt20,000 after they were found killing and eating coconut crab at their home. The third offender from Natawa Village was caught hunting coconut crab and selling them in town. The Sanma Province Krab Kokonas Taskforce is pleased with the prosecution outcomes under the coconut crab ban season with these cases as the first environmental related prosecutions in the country and that the fines should be a deterrent to any other people who think they can get away with the law.

The head of the Wantok Environment Center in Luganville, Mrs Donna Leywa [Llewell] said under the Fisheries Regulations No. 15 of 2004, it is an offence for any person to take, kill, injure or have in his or her possession any coconut crab within the Sanma Province region during a three-year ban period. She said Senior Magistrate Jimmy Garae has sent strong messages to the wider community that offences against the ban will be taken seriously to protect this threatened and unique species of Vanuatu.

Wantok Environment Center has contributed a lot in collaboration with the Fisheries Department to advice and oversee that the ban is strictly applied. The Taskforce continues to investigate funding options to continue its efforts in relation to the ban season regulations. This would include more community awareness within the province, wider stakeholders and outer provincial workshops, and the need to survey and monitor the effectiveness of the ban and see how the ban may have contributed to coconut crab population. The coconut crab ban season in Santo ends in 2007.”[246]

3.3.6 Concluding Comments

The importance and ecological vulnerability of coconut crab for Vanuatu has meant that protection of the species is afforded by way of various Fisheries Regulations. On a practical level, there are concerns about the capacity of the Department of Fisheries to monitor and enforce the regulations. The Sanma Taskforce is an excellent example of how collaborative efforts and sharing expertise and resources (i.e. Government, non-Government and community interests) are likely to achieve an enhanced environmental outcome.

There is limited formal integration between kastom and the various regulations. At a practical and community level, kastom practice and principles are being applied to reinforce and/or compliment the regulations. This may be appropriate in the circumstances where formal prosecution is difficult and/or expensive for the parties involved. Unfortunately, there is only anecdotal evidence of how or when kastom sanctions are being applied - so there are limited avenues to measure success or draw any conclusions as to whether consistent patterns are developing for enforcement.

In the case of formal prosecutions under the closed season regulations, the Magistrate’s Court has taken a strict approach and levied fines appropriately as a deterrent to potential offenders (who would generally come from subsistence or low-level earning backgrounds).[247] These initial fines also give the Court room to maneuver for the future in relation to repeat offending, more serious circumstances of offending and/or where an offender may have received significant commercial benefit as a result of his/her offending. Presently, any fine under the regulations goes back to the Court. There is scope in the future to encourage judicial discretion to allow a percentage of any fine to be awarded to the Department of Fisheries and/or groups such as the Sanma Taskforce to support further conservation initiatives, education and research. Alternatively, a portion of fines could be awarded to the chief and/or community of the offender to support conservation efforts within their community.

What is becoming clear (also having regard to experiences in some other Pacific and Melanesian nations where coconut crab has literally become extinct) is that attitudinal change supported by environmental education is fundamental for the survival of this unique species – coconut crab as an ecological and traditional resource, rather than a commodity. As well, greater awareness is needed in understanding the unusual lifecycle of the species and its habitat protection.

Figure 6: Sanma Taskforce Krab Kokonas Awareness Poster 2004 – 2007.

PART 4

4.1 ASSESSMENT OF THE INTEGRATION OF LAWS AND CUSTOM

The integration of the formal laws of Vanuatu and kastom as those matters concern environmental management and protection is developing positively with proactive examples of co-existence between the two systems. Across the different environmental sectors of land, forests, fisheries, water and biodiversity, there are a variety of statutory provisions and processes including (but not limited to):

· Recognition of kastom issues at constitutional, primary legislation, regulation, management and planning levels within Vanuatu;

· Customary land ownership;

· The exercise of a guardianship and fiduciary role of Government on behalf of disputing custom landowners;

· Kastom based dispute resolution in relation to land;

· Preservation of customary usufruct and subsistence rights through a mixture of statutory and contractual arrangements;

· Various consultation requirements with custom landowners;

· Customary representation and/or advisory capacity for environmental and other national institutions;

· Recognition of custom matters at national planning levels across some environmental sections;

· Participation of custom resource owners in the development of environmental policy and planning;

· Statutory consideration of the impact of development proposals on customary resources, including culture / kastom as an integral part of Vanuatu’s environment and social fabric;

· Potential for commercial opportunities and interface between custom resource owners and industry / development, including mechanisms for equitable sharing of benefits of traditional environmental knowledge; and

· Capacity for the physical management, monitoring and enforcement of natural and physical resources to people and local communities with flexibility to have formal or informal community-based plans which will be founded in kastom.

The assessments of environmental sectors in this paper concerning land, forests, fisheries, water and terrestrial biodiversity – have all demonstrated a neutral and/or proactive approach to customary considerations.[248] Some legislative regimes have demonstrated a clear advancement and shift towards enhanced recognition and integration of customary issues as environmental legislative reform has occurred in recent years.

There is a strong focus towards devolution of responsibility and participation of communities for environmental management and protection. Some agencies of Government have come to appreciate that community-based environmental management is more cost-effective, efficient, practical and likely to be more sustainable in the longer term by comparison with imposed statutory models.

In my view, none of the environmental sectors considered demonstrated any overpowering negative or undermining approach towards kastom or the fundamental importance of it at local, regional and national levels for Vanuatu. In the fisheries sector in particular, the absence of any formal recognition of traditional or customary management under national regulations has not hindered the considerable (informal) development of village-based fisheries management nor the Department of Fisheries’ commitment and encouragement of those mechanisms.

“The strengthening and ongoing adaptation of customary management systems is in response to the contemporary need for additional management efforts with a growing population and commercialization of resources, but also part of a broader revival of traditional practices since Independence from colonial rule in 1980. With the introduction of various new fisheries like the live reef fish and aquarium trades, there is the ongoing need to raise awareness of the pro’s and con’s of these fisheries to villagers and their leaders and continue to develop their capacity in adapting their customary systems to manage them.” [249]

However, whilst the theory of legislative recognition and integration is strongly in place in Vanuatu, there are some examples that the practice has not yet followed. This may be particularly so where there are broad statutory discretions and the administration of the formal law is reliant on Departments’ and officials who are operating with the significant pressure of lacking resources and/or capacity. In some sectors, the lack of formal planning and/or guidelines for administering laws whilst maintaining environmental standards has the potential for inconsistent or adhoc decision-making. On the other hand, the diversity of kastom throughout Vanuatu as that is expressed in the different natural environments and communities’ means standardization or codification of custom is not sensible or might even be impractical for environmental management or protection purposes.

4.2 ENVIRONMENTAL ENFORCEMENT ISSUES

There is significant opportunity in Vanuatu for custom and village-based environmental management to utilise the traditional authority and kastom as the predominant mechanism for environmental enforcement. However, the effectiveness of customary enforcement varies from place to place and is influenced by factors such as the strength and respect for chiefs and village leadership structures, the knowledge and respect of people of customary practices and beliefs such as taboos, geography of the affected environment and ease of surveillance and/or monitoring, the presence or absence of land tenure and/or leadership disputes, the significance or motivators for rural people to disobey customary resource laws due to pressure of cash generation for other needs, and what other alternatives or potential income-generating opportunities may be present for people to offset against environmental protection.

As the Vanuatu population grows, pressures on resources increase, market demand or even natural events occur - environmental management and enforcement will become more complex. Despite the growing strength of traditional structures and customary knowledge, sound environmental decision making at community levels will also have to be informed by some scientific knowledge and awareness of ecosystem principles. This is perhaps where there is major need and opportunity for investment to assist capacity and skills building within Vanuatu at both local and institutional levels. It will be difficult to sustainably manage and enforce environmental regulation into the future without significant advances in the basic data and knowledge of Vanuatu’s environment, particularly for comprehensive understanding of environmental change whether that is in the context of development or non-compliance with legal or customary regulation. Although Vanuatu has clearly recognised customary enforcement in a customary context, it is not at all clear how far that approach can be extended or utilised in commercial relationships or undertakings in relation to the environment.

From my experience and observation of environmental enforcement matters in Vanuatu, the formal laws and custom are integrated in a number of fashions and for various reasons. For example –

· In some situations, a Chief would put in place an environmental kastom within the community which was softer or less onerous than the formal laws (these were generally obeyed and there was no real practical chance that the formal law would be enforced in isolated places).

· In other situations, a Chief would put in place an environmental kastom within the community which duplicated or was the same as the formal laws (perhaps true co-existence and reflecting equal authority of law and custom – these were generally obeyed and where customary enforcement was not successful the Chief would revert to the Police or relevant authority for further action).

· In other cases, a Chief might put in place an environmental kastom within the community which was stricter or more onerous than the formal laws (usually where forms of environmental exploitation had become a serious threat – these were sometimes disobeyed, the custom penalty more severe and there was no recourse or assistance from Police or relevant authority).

“Another interesting trend encountered in some peri-urban villages during this study is the increasing use of state policy to informally backup decisions made by the chiefs. Individuals who repeatedly ignore their chief’s rulings and do not pay their fines for breaking village tabus, including those relating to marine resource management, may be referred to the Police. This is only done when a chief has exhausted other possibilities within the village to ensure the compliance of the individual concerned… The chief still makes the decisions, generally through consensus within his community, but the police sometimes help enforce his rulings where necessary. This cooperation, to date, is done on an informal basis.” [250]

Environmental enforcement on the broader scale for breaches or non-compliance with the various legislative regimes considered in this paper is likely to have very limited, if no place at all, for customary considerations. This is not necessarily a defect or problem because it would be highly unusual for a non-indigenous (i.e. non ni-Vanuatu) person or company to expect or reply on kastom in the context of environmental offending either against one of the Acts and/or in breach of any contractual arrangement or lease.

As well, the offence and penalty provisions of environment related legislation have now significantly increased to levels that prosecutions would be advanced in the Magistrates’ Court[251] as opposed to the Island Court level (where customary law may be of more relevance).[252]

One further area of concern in terms of environmental enforcement and the protections afforded under contractual arrangements and/or leases is the understanding, capacity and/or lack of resources of the custom landowners to take necessary enforcement proceedings and/or other legal action associated with the compensation rights for damages provided in the standard form terms and conditions of leases. Also, at this point in time the vast majority of leases (due to unsettled customary land ownership disputes) have been entered into by the Government on behalf of the custom land owners and thereby there is no separate cause of action. Privity of contract is between the Government agency and the lessee and so custom landowners will be dependant on someone else undertaking the monitoring and enforcement role on their behalf.

4.3 CONCLUSION

The Republic of Vanuatu and the integration of formal laws and kastom for environmental management and protection is perhaps a leading example, at least in the Western Pacific region, of how these two systems may reasonably co-exist to enhance sustainable environmental management into the future. These developments may be contributed to the combination of the unique historical, constitutional and social development of the country, formation of national identity, renaissance of traditional and customary processes and the physical topography, geography and natural resource base that has allowed Vanuatu to evade the same resource demands or pressures experienced in other parts of the South Pacific.

However, one is left with a sense that the theory of integration is at one level, but the practical reality is influenced by a number of variables. In particular, the institutional and administrative capacity of Government agencies and the relative capability of local communities to engage in the environmental future of the nation will have significant influence on the environment outcomes.

Lastly, Vanuatu perhaps is fortunate that environmental degradation is not yet severe and there is the chance to be proactive rather than reactive in promoting integrated environmental management options. A further challenge will be designing and supporting mechanisms that have regard to the unique environmental and Melanesian cultural circumstances to develop in a way that suits Vanuatu’s aspirations, needs and circumstances.

“It is very easy to destroy the Pacific Islands. Look at Nauru, wasted by phosphate greed; the Solomon Islands denuded of timber and now subject to devil conflict over land claims; Tuvalu threatened by global warming and rising water levels. Consider Fiji, bonded to a falling sugar market and unsure whether to go backwards and restore all land to native Fijians or to strive to go forwards in harmony with many Indo-Fijians who have worked on and developed the land and commerce of the country. Think of Papua New Guinea and the devastating impact of mining on vast tracts of the country. Take into account Niue and Cook Islands where there is not enough land for all the people and many live abroad, or Tonga where those left on the island may be dependant on remittances from absentees. Remember the loss of culture, language and tradition in the Marshall Islands, Hawaii and parts of French Polynesia. Vanuatu has a chance to avoid some of the pitfalls and problems of its neighbours. There are options open to it and routes in could take. It remains to be seen if it [Vanuatu] has the will, the leadership and the human resources to move forward without falling over its feet.” [253]

“… problems are arising such as a firewood shortage in some areas of West Ambae. But in general the problem is that people don’t realise what the situation might become…”

Mr Makali Baniuri, Participant, 2^nd Regional Conservation Workshop, Luganville

“… Vanuatu is lucky. We don’t have too many people yet. The ground is good. But if we don’t look to the future things might change…”

Mr Frank Tari, Participant, 2^nd Regional Conservation Workshop, Luganville

“… the man who holds the key to the future is the individual within the community…”

Mr Lambert Maltock, Malekula Local Government Council, 4^th Regional Conservation Workshop, Lakatoro

“… Vanuatu i min aelan we hemi stap bifo finis, todei mo baembae hemi stanap long fuitja. Baembae yumi mekem se tomorrow Vanuatu i stanap olsem wannem?...”

(Vanuatu has existed for a long time, and will continue into the future. The question for us is what will the future of Vanuatu be like?)

Chief Will Bongamatur, Workshop for review of the draft National Conservation Strategy (1993)[254]

APPENDIX

VANUATU’S INSTITUTIONAL FRAMEWORK OF THREE MAIN AGENCIES FOR ENVIRONMENTAL MANAGEMENT

(Extract from LA427 Comparative Environment Law Assignment 2, Donna M Llewell (2004))

A. Vanuatu Environment Unit

The Environment Unit was first established in 1986 under the Ministry of Health. Subsequently the unit was shifted on four occasions between different Ministries.[255] Today, and with the advent of the environmental Management and Conservation Act 2002 (EMCA), the Vanuatu Environment Unit has become a distinct Department for Environment and Conservation (albeit the formal Public Service Commission process is yet to be completed).

The Unit is mandated to coordinate all activities across sectors, Government agencies, NGO’s and the private sector that deal with environmental matters. Its functions include advice to Government on environmental issues; implementation of environmental policies; compilation and distribution of environmental information for Government, NGO’s and public; and development of environmental awareness programmes. The Unit is also responsible for administration of the EMCA. Notably, the unit lacks any environmental monitoring and enforcement personnel.

The Environment Unit presently has three permanent and three probationary ni-Vanuatu staff with an office located in Port Vila, Efate. There are also two overseas consultants presently engaged on an “International Waters” related project. The Unit has recently secured development aid funding for the establishment of an environment officer in each of the six provinces of Vanuatu. This is likely to significantly contribute to the unit’s activities at the local community level.

Organization Chart

ORGANISATIONAL CHART – VANUATU ENVIRONMENT UNIT

B. Department of Forestry

Forestry in Vanuatu is the responsibility of the Ministry of Agriculture, Livestock, Forestry & Fisheries. The Department was restructured in 1992 to accommodate its policy for the development of the forestry sector. Currently the Department is serviced by 37 staff members, five of whom are forestry technicians. The main office is located in Port Vila and there are three regional offices located on the islands with the majority of forest resource (i.e. Santo, Efate and Malekula).

The primary objectives of forest management which are reflected in the National Forest Policy (1997) include:

Manage the nation’s natural forest resources as a renewable asset and protect the ecological, cultural, historical and other non-timber values for the benefit of present and future generations;
Utilise the nation’s forest resources to provide economic and employment growth;
Encourage increased ni-Vanuatu participation in the forestry sector;
Utilise natural forests in a manner which causes the least disturbance to the environment and conserves natural ecosystems; and
Promote the private-sector led establishment of plantations of high value timber species, with preference for local species resistance to damage from cyclones.

Organization Chart

ORGANISATION AND DIVISION CHART - DEPARTMENT OF FORESTRY

The Department’s Extension Forestry Services is responsible for reforestation, afforestation and small scale sawmilling programmes. Collaboration with custom landowners is a significant element of its work to support ni-Vanuatu participation in the industry. In further support of this principle, the Department applies a policy that it will only licence and allow ni-Vanuatu citizens to own and operate a portable sawmill.

C. Fisheries Department

Like Forestry, the Fisheries Department comes under the umbrella of the Ministry of Agriculture, Livestock, Forestry & Fisheries. The Department presently employs 16 permanent ni-Vanuatu staff and five daily rated staff, spread across Vanuatu (predominately located on the main islands of Santo and Efate).[256]

The Corporate Plan 2000 – 2004 and Fisheries Business Plan records the departmental objective of “good management and sustainable development of the fishery resource to achieve maximum benefits for the people of Vanuatu.”

Organization Chart

ORGANISATION AND DIVISION CHART – FISHERIES DEPARTMENT

The Rural Fisheries Development Programme is the interface for domestic fisheries within the six-mile provincial zones. The objectives of the programme are to encourage private, commercial and subsistence fishing enterprises to improve livelihood in the rural areas. Currently, due to budget constraints, only three out of six centres are operating in Vanuatu. The types of projects and expert assistance provided for rural communities and individuals to explore include artisanal deep-bottom fishing; canoe enhancement; rural and provincial fish market rehabilitation; informal training; seaweed farming; aquaculture; and trochus rehabilitation.

ACKNOWLEDGMENTS

Firstly, I would like to acknowledge and thank Mr Mohammed L Ahmadu for his assistance and particularly the University of South Pacific - School of Law (School Research Committee) for providing me with a small research grant in 2005 which allowed me to travel from the northern island of Santo to the University’s Emalus Campus in Port Vila to conduct my academic research for this project. This visit also enabled me to meet face to face and/or by telephone with various officials from Government Department’s with environment related responsibilities. My thanks also to Mr Yoli Tomtavala (University of South Pacific) and Ms Donna Craig (McQuaire University) for their guidance and co-supervision of my research project.

I would also like to acknowledge and thank the following specific people for providing information and their time to discuss various issues with me:

· Mr Russell Nari – (Then) Deputy Director, Vanuatu Environment Unit

· Mr Alsen Obed – Senior Fisheries Officer, Fisheries Department

· Mr Hannington Tamla – Principle Forestry Officer, Department of Forestry

· Chief Solomon Tavue, Purity Tavue, Bill Tavue, Chairperson and various Steering Committee members of the Vatthe Conservation Area, Santo

· Chief Kaleb Kalsekau and son Kalsekau Junior, Warakar Ser and various members of the Loru Protected Area, Santo

· Representative members of the Krab Kokonas Taskforce, Santo

· Kennery Alvea - (Then) Environmental Officer, Sanma Province

· Roy Hills – Director, Wantok Environment Centre

· Marie Kalsei – Project Officer, Wantok Environment Centre

Lastly, I would also like to acknowledge and thank the community of Luganville, Santo and the many villages and ni-Vanuatu people and children that I met during the course of my volunteer service with the Wantok Environment Centre. Thank you for demonstrating that kastom is alive and well in Vanuatu.

BIBLIOGRAPHY

Boer, B (ed) Environmental Law in the South Pacific IUCN – The World Conservation Union : Cambridge,1996.

Boer, B (ed) Strengthening Environmental Legislation in the Pacific Region, South Pacific Regional Environment Programme : Western Samoa, 1993.

Bosselmann, K & Grinlinton, D Environmental Law for a Sustainable Society, New Zealand Centre for Environmental Law, University of Auckland : Auckland, 2002, Monograph Series, Vol. 1.

Brown Weiss, E (ed) Environmental Change and International Law: New Challenges and Dimensions, United Nations University : Japan, 1992.

Cain, Dr TN (ed) Legal Developments in the Pacific Island Region, Proceedings of the 3^rd Annual Conference, Ridgeway Blake Lawyers (Vanuatu) and School of Law, University of South Pacific : Port Vila, 2000.

Cain, Dr TN & Jowitt, A National Integrity Systems – Transparency International Country Study Report Vanuatu 2004, Transparency International Australia and Asia Pacific School of Economics and Governance, The Australian National University : South Victoria, 2004.

Dahl, AL & Carew-Reid, J (eds) Environment and Resources in the Pacific, United Nations Environment Programme (UNEP) : Geneva, 1985, UNEP Regional Seas Reports and Studies No. 69.

Eaton, P Land Tenure and Conservation – Protected Areas in the South Pacific : University of Papua New Guinea, 1985, South Pacific Regional Environment Programme, Topic Review No.17.

Fallon, Dr J The Vanuatu Economy: Creating Conditions for Sustained and Broad Based Development, Australian International Development Assistance Bureau : Canberra, 1994.

Farran, S Land in Vanuatu: Moving Forwards Looking Backwards, University of South Pacific : Port Vila, 2002.

Fletcher, Dr WJ Stock Assessment and Review of Management for Coconut Crab in Vanuatu, ACIAR : Western Australia, 2003.

Forster, M Environmental Law in Vanuatu: A Description and Evaluation, IUCN - The World Conservation Union : Switzerland, 1991.

Johannes, RE Government-supported, Village-based Management of Marine Resources in Vanuatu Ocean & Coastal Management 40 (1/2) 1998.

Hickey, FR & Johannes, RE ‘Recent evolution of village-based marine resource management in Vanuatu’ in Secretariat of the Pacific Community Traditional Marine Resource Management and Knowledge SPC : New Caledonia, 2002 Information Bulletin No. 14.

Johannes, RE & Hickey, FR Evolution of village-based marine resource management in Vanuatu between 1993 and 2001 UNESCO : France, 2004, Coastal Region and Small Island Papers 15.

Lin, S & Kurukulasuriya, L (eds) United Nations Environment Programme United Nations : Kenya, 1995.

MacClancy, J To Kill a Bird with Two Stones, Vanuatu Cultural Centre : Port Vila, 2002.

Malvatumauri – National Council of Custom Chiefs of the Republic of Vanuatu Custom Policy of the Malvatumauri : Port Vila, 1983.

Nari, R Case Study: Linking Traditional Resource Management Approaches and Practices into the Formal Legal System in Vanuatu, Paper prepared for the Law and Environment Workshop : Townsville, April 2004.

Overton, J & R Scheyvens, R (eds) Strategies for Sustainable Development: Experiences from the Pacific Zed Books : London & New York, 1999.

South Pacific Regional Environment Programme (SPREP) Legal and Institutional Models for Conservation Areas, South Pacific Regional Environment Programme : Western Samoa, 1994, Reports and Studies Series No. 79.

SPREP Capacity 21: National Workshop on Sustainable Development and Planning, South Pacific Regional Environment Programme : Western Samoa, 1996.

SPREP Report of the Workshop of Customary Tenure, Traditional Resource Management and Nature Conservation, South Pacific Commission : New Caledonia, 1989.

SPREP Vanuatu Country Report No. 15, SPREP : New Caledonia, 1980.

Tacconi, L & Bennet, J The Forests of Vanuatu: An Overview of their Economic and Environmental Status, The University of New South Wales : Canberra, 1993, Vanuatu Forest Conservation Research Report No. 3.

Tapisuwe, A; Williams, A & Vari, M (eds) A Review of key Environmental Sectors with Priority Projects recommended for International Waters Project Consideration, Foundation for South Pacific Peoples – Island Consulting : Port Vila, 2003.

Thaman, R Island Life in the 21^st Century: Current Status and Challenges for Mainstreaming the Conservation and Sustainable Use of Biodiversity in the Pacific Islands, Paper prepared for the 7^th Pacific Islands Conference on Nature Conservation and Protected Areas : Cook Islands, July 2002.

Thistlewaite, R; Votlaw, G & De Villa, J (eds) Environment and Development: A Pacific Island Perspective, Asian Development Bank : Manilla, 1992.

Thistlewaite, R & Davis, D (eds) Pacific 2010 – A Sustainable Future for Melanesia? National Centre for Development Studies, Australian National University : Canberra, 1996.

United Nations University and SPREP “Pacific Island Countries Case Study: Synergies and Coordination among Multilateral Environmental Agreements”, Tokyo, 2002.

Wiles GA & Krebs WA (eds) Collins Concise Dictionary (2^nd edition) Collins : Australia, 1988.

Williams, A & Corrigan, Dr H (eds) Country Report for Capacity Building for Environmental Management in the Pacific (CBEMP) Programme, The Republic of Vanuatu : Port Vila, 1998.

Van Trease, H (ed) Melanesian Politics: Stael Blong Vanuatu, Institute of Pacific Studies & University of Canterbury : Suva & Christchurch, 1995.

Van Trease, H The Politics of Land in Vanuatu, Institute of Pacific Studies : Suva, 1987.

Vanuatu Environment Unit Convention on Biological Diversity (CBD) – Vanuatu National Report to Conference of the Parties, Ministry of Agriculture, Livestock, Forestry, Fisheries and Environment : Port Vila, 1998.

LEGISLATION REFERRED TO IN THIS PAPER

· Alienated Land Act 1982 [Cap 145];

· Animal Importation and Quarantine Act 1988 [Cap 201];

· Constitution of the Republic of Vanuatu 1980;

· Courts Act 1980 [Cap 122] (repealed by Judicial Services and Courts Act 2000);

· Customary Land Tribunal Act [No. 7 of 2001];

· Decentralization and Local Government Regions Act [No. 1 of 1994];

· Environmental Management and Conservation Act [No. 12 of 2002];

· Fisheries Act [No. 37 of 1982];

· Fisheries Act [No. 55 of 2005];

· Forestry Act 1982 [Cap 147];

· Forestry Act [No. 26 of 2001];

· Forestry Rights Registration and Timber Harvest Guarantee Act [No.28 of 2000];

· Import of Plants Act 1964 [Cap 34];

· Island Courts Act 1983 [Cap 167];

· Land Leases Act 1984 [Cap 163];

· Land Reform Act 1980 [Cap 123];

· Land Reform (Amendment Act) [No. 35 of 2000];

· Lands Referee Act 1983 [ Cap 148];

· Prevention of Spread of Noxious Weeds Act 1966 [Cap 44];

· Public Health Act [No. 22 of 1994];

· Water Resource Management Act [No. 9 of 2002]; and

· Wild Bird (Protection) Act 1962 [Cap 30].

POSTSCRIPT

The first draft of this paper was submitted to USP in May 2006.

Final completion for deposit to USP and graduation for the LLM programme occurred in November 2006.

The following two matters were identified by the examiner (Yoli Tomtavala) to require further correction only for the purpose of publication of this paper and/or subsequent development for a PHD project.

The two matters are noted in the text as *** Refer to Postscript.

· Pg 63 - The State Law Office of Vanuatu confirms that the Forestry Act 2001 has been in force since 2003; and

· Pg 157 - The Courts Act 1980 has been repealed by the Judicial Services and Courts Act 2000.

Donna M Llewell

13 November 2006

[1] Kastom refers to the Vanuatu Bislama spelling of the word “custom” which incorporates cultural and traditional systems, behaviour and established usage or practices for sustaining life, people, communities and the environment. Refer to section 1.3 Methodology and Definitions.

[2] 2004 – 2005 Legal Advisor - Volunteer Services Abroad New Zealand in partnership with Wantok Environment Centre (WTEC). WTEC is a charitable community-based non-Government organisation providing technical and other support for community conservation initiatives throughout Vanuatu.

[3] Sanma Province is the area of provincial or the local Government region which incorporates the two main islands of Santo and Malo along with all the smaller offshore islands around the two main islands. Refer to the Decentralization and Local Government Regions Act 1994.

[4] R Thistelwaite; G Votlaw & J De Villa (eds) Environment and Development: A Pacific Island Perspective (1992) 125 – 130; Dr J Fallon The Vanuatu Economy: Creating Conditions for Sustained and Broad Based Development (1994) 1 – 5; and http://www.nationmaster.com/country/nh. Growth rate 2.6% from Vanuatu National Population and Housing Census: Main Report (2000) 9.

[5] Sanma Krab Kokonas Taskforce was established in 2002 and includes representatives of the Fisheries Department, Department of Forestry, Sanma Provincial Council, Wantok Environment Centre and Loru Protected Area. Note that “Krab Kokonas” is the Bislama name for coconut crab (Birgus latro).

[6] Refer to footnote 2.

[7] S Samou ‘Marine Resources’ in J Overton & R Scheyvens (eds.) Strategies for Sustainable Development: Experiences from the Pacific (1999) 142.

[8] SPREP Legal and Institutional Models for Conservation Areas (1994) 1.

[9] FR Hickey & RE Johannes ‘Recent evolution of village-based marine resource management in Vanuatu’ in Secretariat of the Pacific Community Traditional Marine Resource Management and Knowledge (2002) 16.

[10] Environmental Management and Conservation Act 2002; and Water Resources Management Act 2002. Sections 2 (Interpretation).

[11] Reference to words and terms in Bislama are published in italics in this paper.

[12] GA Wiles & WA Krebs (eds.) Collins Concise Dictionary (1988) 922.

[13] World Commission on Environment and Development, Our Common Future (1987) 46 referenced from PS Thacher “Changing requirements for international information” in Brown Weiss, E (ed) Environmental Change and International Law: New Challenges and Dimensions (1992) 81.

“The term “sustainable development” was brought into common use by the World Commission on Environment and Development (The Brundtland Commission) in 1987. Sustainable development calls for development that “meets the needs of the present generation without compromising the needs of the future generation”. It highlights the need to simultaneously address development and environmental imperatives. In operational terms, sustainable development can also be defined as “the set of development programmes that meet the targets of human needs satisfaction without violating long-term natural resource capacities, and standards of environmental quality and social equity.”” B Paeniu “Sustainable Development: Objectives & Principles in Vanuatu” in SPREP “Capacity 21: National Workshop on Sustainable Development and Planning” (1996) 6.

[14] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 9.

[15] Foundation of the Peoples of the South Pacific International (FSPI) Community-based Conservation Activities in Vanuatu, Report of Community Workshop, 1997.

[16] R Nari Case Study: Linking Traditional Resource Management Approaches and Practices in the Formal Legal System in Vanuatu (Paper prepared for Law and Environment Workshop, 2004)

[17] http://www.biodiversity.com.vu/vans_biod.htm Website maintained by Vanuatu Environment Unit (with funding from UNEP/GEF (2002)).

[18] RE Johannes & FR Hickey Evolution of village-based marine resource management in Vanuatu between 1993 and 2001 (2004) 21.

[19] “Solomon’s Solution May Need Rethink” The Dominion, Wellington, New Zealand, 22 April 2006.

[20] Laws of the Republic of Vanuatu - Revised Edition 1988. The full Constitution includes Act 10 of 1980, Act 15 of 1981 and Act 20 of 1983. In this section 2.2, reference to an “Article” refers to the relevant article of the Constitution.

[21] “Rejection of colonialism and reassertion of independence gave rise to the “homegrownness” of constitutions and a post-independence constitutional principle of legal autochthony, which has been described as not just “the principle of autonomy” but “a principle of something stronger, of self-sufficiency, of constitutional autarky or… or being constitutionally rooted in their own native soil.” “ Quoted from KC Wheare “Constitutional Structure of the Commonwealth” (1960), 89 in A Vaai “The idea of law: A Pacific Perspective” (1997) 21 JPS, 225 – 245.

[22] The fundamental rights and freedoms of the individual include the right to life; liberty; security of the person; protection of the law; freedom from inhuman treatment and forced labour; freedom of conscience and worship; freedom of expression; freedom of assembly and association; freedom of movement; protection of privacy of home and property; equal treatment before the law; and various other procedural legal protections relating to natural justice and fairness in the context of legal proceedings. These fundamental rights and freedoms are enjoyed without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex (Articles 5(1) and (2)).

[23] The fundamental duties of the individual include respect and to act in the spirit of the Constitution; recognition that he / she can fully develop his/her abilities and advance his/her true interests only by active participation in the development of the national community; exercise the rights guaranteed under the Constitution and fully participate in the Government of Vanuatu; to protect Vanuatu and to safeguard national wealth, resources and the environment in the interests of present and future generations; to work in socially useful employment or create legitimate opportunities for employment; to contribute to the revenue of Vanuatu according to the law; in the case of a parent – to support, assist and educate all children and to give them an appreciation of their fundamental rights, duties, national objectives and the culture and customs of Vanuatu; and in the case of a child – to respect his/her parents (Article 7).

[24] Refer to Custom Policy of the Malvatumauri – Published 17 August 1983 as the fundamentals of custom and culture in the Republic of Vanuatu (translated June 1993 by L. Lindstrom). This is a comprehensive general policy document containing 40 articles on a wide range of issues concerning kastom principles, rules and guidelines for Vanuatu.

[25] http://www.paclii.org/vu/sources.html

[26] Island Courts Act 1983.

[27] http://www.paclii.org/vu/courts.html

[28] This has been done under the Land Reform Act [Cap 123]. The definition of “land” under this Act in combination with the definition of “customary land” and the scheme under the Customary Land Tribunal Act 2001 provides the presumption in law that land subject to customary ownership is terrestrial land, foreshore and land under water to the outer seaward side of an offshore reef.

[29] Article 77 of the Constitution was particularly important for the settler and plantation communities at the time of Independence who claimed freehold interests in land which was subsequently converted to a leasehold interest.

[30] The main multilateral environment agreements that Vanuatu has ratified and/or become a signatory include – Framework Convention on Climate Change (UNFCC); Kyoto Protocol; Ozone Layer Convention (Vienna); Montreal Protocol; Copenhagen Amendment; Waigani Convention; Distribution & Use of Pesticides; Marine Pollution Convention (London), amendment and protocol; Marine Pollution from Ships (MARPOL); CLC Trust Fund and Protocol; Oil Pollution Response & Cooperation (OPRC); Intervention Convention; Law of the Sea (UNCLOS); World Heritage Convention; Convention on Biological Diversity (CBD); Convention on International Trade of Endangered Species (CITES); Desertification (CCD); The Convention for the Protection of Natural Resources and Environment of the South Pacific (SPREP); and Convention on the Prohibition of Fishing with Long Drift Nets in the South Pacific.

Vanuatu National Conservation Strategy (1993) 40 - 41; and United Nations University and SPREP “Pacific Island Countries Case Study: Synergies and Coordination among Multilateral Environmental Agreements” Attachment 1 (2002) 41.

[31] SPREP Legal and Institutional Models for Conservation Areas (1994) 33.

[32] SPREP Legal and Institutional Models for Conservation Areas (1994) (Annex 2) 30 – 33.

[33] By way of example, Vanuatu has given effect to this particular Article through enactment of the Environmental Management and Conservation Act 2002, Part 3, sections 11 - 23 relating to environmental impact assessment procedures in specified development activities.

[34] Article 8(j) of the CBD provides that each contracting party shall, as far as possible and as appropriate: “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application within the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices.”

Article 10(c) of the CBD requires contracting parties to: “Protect and encourage customary use of biological resources in accordance with traditional cultural practices.”

[35] D Craig & DP Nava ‘Indigenous Peoples’ Rights and Environmental Law’ in S Lin & L Kurukulasuriya (eds) United Nations Environment Programme (1995) 127.

[36] SPREP refers to the South Pacific Regional Environment Programme.

[37] The Protocol for the Prevention of Pollution of the South Pacific Region by Dumping and the Protocol concerning Cooperation in Combating Oil Pollution Emergencies in the South Pacific Region.

[38] B Boer (ed) Environmental Law in the South Pacific (1996) 8.

[39] Article 2 of the 1993 Agreement Establishing SPREP – “The purposes of SPREP are to promote cooperation in the South Pacific region and to provide assistance in order to protect and improve its environment and to ensure sustainable development for present and future generations. SPREP shall achieve these purposes through the Action Plan adopted from time to time by the SPREP Meeting, setting the strategies and objectives of SPREP.” Id. 12.

[40] SPREP, Samoa : 2004.

[41] Id. 5.

[42] Ibid. The regional action strategy incorporates the concept of mainstreaming conservation as a new direction for the region. Mainstreaming in this context is defined as – making conservation everyone’s responsibility. It makes conservation part of all aspects of managing the economy and society. It integrates conservation into all activities of individuals, Government, private enterprise and civil society at local, national, regional and international levels (i.e. participation from all levels of society).

[43] Id. 12. The five-year targets for this objective include – In at least 10 Pacific Island Countries and Territories (PICTs) to integrate traditional village councils and chiefly systems into national and local authority decision making; to integrate traditional knowledge and management practices that promote sustainable use of resources in management plans conservation areas; to recognise community based conservation approaches in national conservation and development plans; and to translate significant local, national and regional conservation documents into local languages in all PICTs.

[44] Ibid. The five-year targets for this objective include – In at least five Pacific Island Countries and Territories (PICTs) to document and disseminate traditional knowledge, practices and innovations; to establish effective mechanisms and regulations to recognise and protect customary land tenure, traditional knowledge, practices and innovations; to create national regimes for regulating access to genetic resources; and to empower traditional knowledge holders to promote, facilitate and regulate access to and use of traditional knowledge in 10 PICTs.

[45] B Boer (ed) Environmental Law in the South Pacific (1996) 7 – inserted words in square brackets.

[46] “There is little legislation at present in force on environmental matters except for partial regulations concerning forestry, mining, import of plants and animals, wild bird protection, fishing and town planning, most of which require reconsideration. The preparation of environmental legislation to meet identified problems is a priority of the Government.” South Pacific Regional Environment Programme “Vanuatu Country Report” (1980) 2.

[47] Some significant examples of the international and regional assistance and/or workshops that Vanuatu was involved with during this period have included:

· The IUCN Environment Law Centre at the request of the Asian Development Bank – Environmental Law in Vanuatu: A Description and Evaluation (1991);

· South Pacific Regional Environment Programme and United Nations Environment Programme – Strengthening Environmental Legislation in the Pacific Region (1992);

· United Nations Development Programme - Capacity Building for Environmental Management in the Pacific Programme (1996 – 1998); and

· Development of the Vanuatu National Conservation Strategy (1993) and the Vanuatu National Biodiversity Conservation Strategy (1999).

[48] Refer to Appendix at the end of this paper – Vanuatu’s Institutional Framework of three main agencies for Environmental Management (2004 Country Study – Donna M Llewell).

[49] Agenda 21 is an international environmental law document adopted when nations of the world participated in the United Nations Conference on Environment and Development and relates to the General Assembly resolution 44/228 of 22 December 1989. A full copy of Agenda 21 is available at http://earthwatch.unep.net/agenda21.

Agenda 21, Chapter 8: Integrating Environment and Development in Decision-Making.

The four Program Areas include:

· Integrating environmental and development at the policy, planning and management levels;

· Providing an effective legal and regulatory framework;

· Making effective use of economic instruments and market and other incentives; and

· Establishing systems for integrated environmental and economic accounting.

[50] S Farran Land in Vanuatu: Moving Forwards Looking Backwards (2002) 1.

[51] A Tapisuwe; Williams, A & M Vari (eds) A Review of key Environmental Sectors with Priority Projects recommended for International Waters Project Consideration, (2003) 13.

[52] Ibid. 24. One of the sustainable land projects that WTEC was investigating in 2005 related to awareness and educating communities to garden and other mixed uses within coconut plantations and under coconut trees to thereby decrease the pressure for more land clearance; and also the future use and development of coconut timber as some major plantations on Santo move closer to the expiry of coconut production.

[53] Constitution of the Republic of Vanuatu 1980. Articles 73 and 74.

[54] S Farran Land in Vanuatu: Moving Forwards Looking Backwards (2002) 2.

[55] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 22.

[56] Land Reform Act 1980 [Cap 123]. Part III (Alienated Land) and Part IV (Negotiations and Agreements relating to Custom Land).

[57] Ibid. Part V, Section 8 (Minister to have General Management and Control of Certain Land).

[58] Ibid. Part VI (Public Land).

[59] Alienated Land Act 1982 [Cap 145]. Section 8 (Loss of Rights of Alienator).

[60] Ibid. Section 16 (Voluntary Negotiations between Custom Landowner and Alienator). Such arrangements might include a lease of the land; partial lease of the land; a lease of that land together with other land; the payment by custom owners of the value of improvements that the alienator has carried out on the land; or a lease together with payment for improvements which are not included in the lease.

[61] Ibid. Section 19 (Approval of Lease or Agreement).

[62] Land Referee Act 1983 [Cap 148]. Sections 1 – 6.

[63] Alienated Land Act 1982 [Cap 145]. Section 20 (Referral to Lands Referee during Negotiations) and Section 21 (Compulsory Referral to Lands Referee).

[64] Ibid. Section 23 (Decision of Land Referee Final) and Land Referee Act 1983 [Cap 148]. Section 4.

[65] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 25.

[66] Land Leases Act 1984 [Cap 163]. Parts II – X.

[67] Ibid. Section 36 (Lessor’s Consent to Dealing with Lease).

[68] Ibid. Section 39 (Rent Review).

[69] Ibid. Section 40 (Agreements Implied in Leases on the Part of the Lessor) and Section 41 (Agreements Implied in Leases on the Part of the Lessee). By way of example of one implied condition of the lessor - provided the lessee pays rental and observes and performs the conditions contained or implied in the lease, he / she is entitled to peaceful and quiet possession and enjoyment of the leased land without interruption by the landowners or any other person claiming through them. By way of example of one implied condition of the lessee – to maintain any leased building or dwelling-house in “good repair” and not to permit or suffer any part of the leased land to be used for any purpose other than that which it was leased without the prior consent of the landowner which shall not be unreasonably withheld.

[70] Customary Land Tribunal Act [No. 7 of 2001]. Section 28 (Disputes to be Resolved in Accordance with Custom).

[71] Ibid. Section 3 (Interpretation).

[72] Ibid. Section 41 (Responsibilities of Local Government and Municipal Councils).

[73] Ibid. Section 28(2) – (4) (Disputes to be Resolved in Accordance with Custom)

[74] Ibid. Section 43 (Guidelines). Draft guidelines in Bislama have now been developed by the Department of Lands which provide a simple explanation of the Act and its procedural requirements.

[75] Ibid. Section 32 (Allowances and Costs) and Schedule 2.

[76] Ibid. Section 27(4) (Hearing of Dispute).

[77] Id. Section 27(5).

[78] Ibid. Section 30 (Orders).

[79] Ibid. Section 33 (Decisions are Final).

[80] Ibid. Section 34 (Records of Decisions) and Section 40 (Responsibilities of Director).

[81] Ibid. Section 42 (Offences).

[82] Land Reform Act 1980 [Cap 123]. Part IV (Negotiations and Agreements Relating to Custom Lands), Section 6 (Certificate of Registered Negotiator).

[83] Ibid. Schedule, Part 1, Form A, Section G: Participation by Custom Owners.

[84] Ibid. Part VI (Public Land), Sections 9 -13 and Land Reform (Amendment) Act [No.35 of 2000], Part 6A (Compensation).

[85] Alienated Land Act 1982 [Cap 145]. Section 25 (Representation of Unidentified Custom Owners).

[86] Ibid. Section 26 (Special Fund for Moneys).

[87] Ibid. Part 2 (Village Land Tribunals), Part 3 (Custom Sub-Area Land Tribunals), Part 4 (Custom Area Land Tribunals) and Part 5 (Island Land Tribunals).

[88] Ibid. Part 7 (Qualification of Members and Secretaries of Land Tribunals).

[89] Ibid. Section 37 (Qualification of Members of Land Tribunals).

[90] Id. Section 37(3).

[91] Ibid. Section 31 (Customary Reconciliation Ceremony).

[92] Clause 15.2 of the Draft Guideline states: “Olgeta lan tribunal oli nogat paoa blong mekem wan oda bifo oli mekem wan desisen. Sipos wan pati long ol prosiding blong wan lan tribunal i wantem kasem wan oda bifo desisen blong tribunal, eksampol, sipos wan narafala pati i mekem damej long graon, pati we i stap askem oda i mas aplae i go long Majistret Kot o Suprim Kot kolosap long eria blong hem, blong wan oda blong sot taem blong protektem posisen blong hem kasem taem we lan tribunal i givim desisen long keis”. Translation – All land tribunals have no power to make an order prior to a decision. Suppose a party with a proceeding before a land tribunal wants some order before a decision of the tribunal (for example, where another party causes damage to the land), the party seeking an order of this nature must apply to the Magistrate’s or Supreme Court closest to their region to obtain a short-term order to protect their position until the time comes where the land tribunal gives its decision in the case.

[93] Magistrate’s Court (Civil Jurisdiction) Act [Cap 130], Section 1(a).

[94] S Farran Land in Vanuatu: Moving Forwards Looking Backwards (2002) 4.

[95] L Tacconi & J Bennett The Forests of Vanuatu: An Overview of their Economic and Environmental Status (1993), 3.

[96] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 86.

[97] A Tapisuwe; Williams, A & M Vari (eds) A Review of key Environmental Sectors with Priority Projects recommended for International Waters Project Consideration, (2003) 26.

[98] Forestry Act 1982 [Cap 147]. Part V, Section 20 (Restriction of Clearing Operations near Streams).

[99] Ibid. Part V, Section 21 (Management, Control and Protection of Land for Certain Purposes). Furthermore, section 22 (Power of Minister to give Directions Prohibiting or Limiting Clearing Operations and Appeals from such Directions) provides another discretion for the Minister to give a direction to operators which are causing or likely to cause “serious soil erosion or to interfere seriously with stream flow” – to cease operations, not to start operations or to carry out the operation only in accordance with conditions specified in the direction.

[100] Ibid. Part VI, Section 24 (Restrictions as to Fires in Rural Areas).

[101] Ibid. Part VIII, Section 34(2)(f) (Regulations).

[102] Forestry Regulations (Order 10 of 1984; and Order 56 of 1985). Section 5(h) (Conditions of Timber Licence).

[103] Id. Section 5(i).

[104] Forestry Act [No. 26 of 2001]. Part 6, Sections 50 – 52 (Conservation Areas).

[105] Ibid. Part 6, Section 53 (Protected Plant Species).

[106] Ibid. Part 6, Section 54 (Restrictions).

[107] Ibid. Part 7, Section 57 – 60 (Forestry Project Fund).

[108] Forestry Rights Registration and Timber Harvest Guarantee Act [No.28 of 2000]. Part 2, Sections 3 – 9 (Forestry Rights).

[109] Ibid. Part 1, Section 1 (Interpretation).

[110] Ibid. Part 3, Section 10 (Definition of Timber Plantation).

[111] Ibid. Part 3, Section 11(2) (Definition of Harvesting Operations).

[112] Ibid. Part 3, Section 12(1) (Operations Subject to Forestry Legislation).

[113] Id. Section 12(2) – (5).

[114] Ibid. Division 3 (Timber Plantations Code), Sections 20 – 24. There is presently no operative Timber Plantations Code in Vanuatu.

[115] Forestry Act 1982 [Cap 147]. Section 1 (Interpretation).

[116] Ibid. Part III, Section 4(3)(b)(iv) and 4(3)(c)(iii) (Forest Plantation Agreements).

[117] Id. Part III, Section 4(3)(c)(v) and Section 28 (Reforestation Charge).

[118] Ibid. Part III, Section 8 (Government to be Satisfied as to Custom Owners).

[119] Ibid. Part IV, Section 11 (Agreements for Utilisation Operations). Note that section 11(1) also stipulates that the agreement is exempt from the provisions of sections 6 and 7 of the Land Reform Act 1980 [Cap 123] which relate to certification a registered negotiator with custom landowners; and the avoidance and unenforceability of agreements between persons who are not indigenous citizens and custom landowners.

[120] www.fdc.org.au/files/tamla/pdf. T Tamla The Role of Community Conflict Management: Lessons Learnt from Managing the Forestry Sector in Vanuatu , 3.

[121] Forestry Regulations (Order 10 of 1984; and Order 56 of 1985). Section 3 (Form of Agreement for Utilisation Operation).

[122] Ibid. Schedule 2, Clauses 3 – 5.

[123] A Tapisuwe; Williams, A & M Vari (eds) A Review of key Environmental Sectors with Priority Projects recommended for International Waters Project Consideration, (2003) 45.

[124] Information on Fisheries Management in the Republic of Vanuatu (April 2002, 3) - With respect to the existing status of fisheries management and development plans, the 2000 Asian Development Bank fisheries sector review states: “To date, no fishery in the country has operated under a formal management plan.” Subsequent to that review, a Vanuatu Tuna Management Plan was formulated using assistance from the Forum Fisheries Agency. No other fishery management plans have been developed to date.

[125] It is difficult to assess without statistical detail the environmental and social effects of maritime related accidents. In the two year period of living on the island of Santo, I personally observed 12 historical and decaying wrecks around the coastline. I was also involved through WTEC in advising two coastal village communities on legal issues associated with vessels running aground on their custom reef. In one case near the island of Malekula, the vessel had been on the reef for close to two years and was alleged to be still holding 40,000 litres of diesel. In the other case in South Santo, the vessel had grounded on a custom protected reef and was completely broken up with consequential oil discharging. The custom owners wanted to seek removal of the wreckage and damages for the environmental effects to the reef and marine protected ecosystem.

[126] SWOT Analysis of the Use of Community Participants to achieve Sustainable Fisheries Management (2003) notes that partnerships with communities for sustainable fisheries management, reduces Government costs, increases compliance with regulations, and provides a means of gathering and networking important assessment and monitoring information.

[127] Information on Fisheries Management in the Republic of Vanuatu (April 2002) 7.

[128] Fisheries Act [No. 55 of 2005]. Section 81(2) and 81(7) (Savings). The effect of this savings provision is important because the Fisheries Regulations of 1983 and 1986 which contain a dedicated Part VI relating to Fisheries Conservation Measures. This will be explained in more detail later in this section.

[129] Ibid. FA06 includes a new Schedule which lists nine international and/or regional Treaties to which Vanuatu is a signatory (including Conventions concerning Indian Ocean Tuna, Atlantic Tuna, Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Antarctic Marine Living Resources, Multi-lateral Treaty with the USA, Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, the South Pacific Forum Fisheries Agency Convention and the United Nations Convention on Law of the Sea). Also Part 5, Sections 10 – 21 (Compliance with International Obligations).

[130] Ibid. Section 1 (Interpretation).

[131] Ibid. Part 8, Sections 35 – 40 (Vanuatu Whale Sanctuary). Section 35(3) provides that the purpose of the Vanuatu Whale Sanctuary is to give formal recognition of the high level of protection already afforded to marine mammal in Vanuatu waters in accordance with international law.

[132] Ibid. Part 9, Section 41 (Other Prohibited Activities).

[133] Ibid. Part 9, Section 42 (Other Prohibited Activities).

[134] Ibid. Part 7, Sections 31 – 34 (Ban on Driftnet Fishing)

[135] Ibid. Section 78(1) and Sections 78(2)(a), (m), (s), (v)(i)-(iii) (Regulations).

[136] The species affected in some way by this Part of the regulations include marine species that are under pressure from both commercial and domestic demands – rock lobster, slipper lobster, coconut crab, green snail, trochus, trumpet shell, coral, aquarium fish, turtles, crustaceans, and beche-de-mer (sea cucumber).

[137] Fisheries Act 1982 [Cap 158]. Section 8(3) (Local Fishing Vessel Licences).

[138] Fisheries Act [No. 55 of 2005]. Part 3, Section 4(5) (Obligations of Local Fishing Vessels).

[139] Ibid. Part 8, Section 36(6) (Protection Measure).

[140] Ibid. Part 9, Sections 41(2) and 41(5) (Prohibited Fishing Methods).

[141] Ibid. Part 9, Section 42(2) (Marine Reserves).

[142] Ibid. Part 7, Sections 32(5) and 32(6) (Ban on Driftnet Fishing Activities) and section 33(2) (Driftnet Vessels not to enter Vanuatu Ports).

[143] Ibid. Part 2, Section 3(2)(g) (Fisheries Management Plans).

[144] Ibid. Part 2, Section 3(3)(b) (Fisheries Management Plans). Subject to the physical area and species covered by a fisheries management plan, it is arguably that a custom landowner and/or traditional resource users may be considered affected persons which interests or concerns would be relevant in developing a management plan.

[145] Ibid. Part 3, Section 4(2)(a) – (b) (Obligations of Local Fishing Vessels).

[146] Ibid. Part 4, Section 6(5) (Obligations of Foreign Fishing Vessels).

[147] Ibid. Part 5, Section 2(2)(b) (Establishment of Fisheries Data and Compliance Unit). The unit is to be supervised by an Advisory Board comprising the Director, the Maritime Commissioner, representatives of the State Law Office and the Department of Foreign Affairs, and such other appropriate persons as the Minister determines.

[148] Ibid. Part 9, Section 41 (Prohibited Fishing Methods). Under the FA06, non-compliance is punishable by a fine not exceeding VT10,000,000 or by a term of imprisonment not exceeding two months or both. Whereas, section 19 of the FA82 provided a fine not exceeding VT1,000,000.

[149] Ibid. Part 9, Section 42(1) (Marine Reserves).

[150] RE Johannes & FR Hickey Evolution of village-based marine resource management in Vanuatu between 1993 and 2001 (2004) 45. Annex 1 provides an island by island list of Vanuatu’s village-based marine resource management regulations for tenured fishing rounds for 1993 and 2001.

[151] Ibid 21.

[152] Id.

[153] A Tapisuwe; Williams, A & M Vari (eds) A Review of key Environmental Sectors with Priority Projects recommended for International Waters Project Consideration, (2003) 40 – inserted words in square brackets.

[154] Ibid. Update – Some aspects of the urban water supply for Luganville are also managed under contract between the Ministry and the private company, UNELCO.

[155] Id. 41. The focus for the future according to the Department of Geology, Mines and Water Resources (DGMWR) is to ensure a) Full coverage of water supply systems to cover everyone; b) Institutional strengthening and capacity building on the know how to manage and maintain water supply systems; c) Public awareness on the hygienic uses of water supply; and d) To have in place technical expertise on water sampling, monitoring and surveillance to ensure all water supply systems are safe for human consumption.

As a result of the Government rationalization and redundancy exercise in 1998, the Water Resources Unit of the DGMWR was reduced from eight original staff to three. This was considered a major setback for water resource management throughout Vanuatu.

[156] Water Resources Management Act [No.9 of 2002]. Preamble and Section 1 (Application).

[157] Ibid. Sections 3 - 8 (Use of Water); Sections 15 – 20 (Committees); and Sections 21 – 25 (Water Resource Management – Planning).

[158] Ibid. Section 10 (Matters to be considered).

[159] Ibid. Section 26 (Declaration of Water Protection Zone) and Section 27 (Water Protection Zone can be urban or rural).

[160] Ibid. Section 28 (Public Education Program).

[161] Ibid. Section 30 (Power to give Direction) and Section 31 (Acquiring interest in Land).

[162] Ibid. Section 37 (Regulations). The joint regulation power contemplates and provides examples in the context of public health, fisheries waters, forestry and land based activity where the sectorial framework for Vanuatu’s environment related laws will require joint Ministerial action.

[163] Ibid. Section 32 (Offences) and Section 33 (Continuing Offence).

[164] Ibid. Section 2 (Interpretation).

[165] Ibid. Sections 10(d) and 10(f) (Matters to be considered).

[166] Ibid. Section 16 (Composition of the National Water Resources Advisory Committee).

[167] Ibid. Section 19 (Local Water Management Committees).

[168] Ibid. Sections 21 – 25 (Water Resource Management – Planning). However, the discretionary power provided under section 37(f) would allow the Minister to develop regulations for the preparation of a National Water Resources Management Policy or Plan.

[169] Ibid. Section 26 (Declaration of Water Protection Zone).

[170] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 89.

[171] http://www.biodiversity.com.vu/vans_biod.htm Website maintained by Vanuatu Environment Unit (with funding from UNEP/GEF (2002)).

[172] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 115.

[173] Vanuatu National Biodiversity Strategy (1999) 17 – 18. The six main objectives of the strategy include – Protection and wise use of biodiversity; Application of policy, planning and legal mechanisms to enable sustainable management of biodiversity; Research, assessment and monitoring of biodiversity; Capacity building for environmental management; Environmental education, awareness and information sharing; and Participation of local communities in the management of biodiversity.

[174] Ibid. Section 4 (Biodiversity Strategy) 17.

[175] Wild Bird (Protection) Act 1962. Section 2 (Killing etc. of Protected Species Prohibited without Permit). Protected bird species include the following – Australian dabchick, White-browed rail, Australian white-eyed duck, Barn owl, Santa Cruz ground pigeon, Green palm lorikeet, Chestnut-bellied kingfisher, Thicket warbler, Mountain starling, White-bellied honey-eater, Blue-faced parrot, Red-headed parrot, Red-headed parrot-finch, and Sooty rail.

[176] Ibid. Sections 3 and 4 (Killing etc. of Protected Species Prohibited except during Permitted Months). Closed seasons under the WBPA allow a 9 month protection period where it is unlawful for any person to kill, wound, capture or take the eggs of specified species which generally operates to afford protection during the breeding, nesting and/or egg incubation.

[177] Ibid. Sections 4(2) and 4(3) (Killing etc. of other Protected Species Prohibited except during Permitted Months).

[178] Ibid. Section 5 (Sale, Purchase and Export of Protected Species Prohibited) and Section 7 (Import of Trap, Net etc. without Permit).

[179] Ibid. Section 6 (Hunting at Night Unlawful).

[180] Ibid. Section 10 (Penalties) and Section 12 (Enforcement).

[181] Vanuatu’s only legislative reference to insects is the Rhinoceros Beetle (Prevention) Act 1961 [Cap 28] which provides for the inspection and fumigation of vessels, aircraft and passenger’s baggage arriving from specified Asian and other Pacific countries in an effort to prevent introduction of that insect.

[182] Animal Importation and Quarantine Act 1988 [Cap 201]. Section 2(1) (Restriction on Importation of Animals, Animal Products etc.)

[183] Ibid. Section 1 (Interpretation).

[184] Ibid. Section 18 (Orders Prohibiting Import of Animals).

[185] Ibid. Section 20 (Offences).

[186] Import of Plants Act 1964 [Cap 34]. Section 1 (Application for Import Permit).

[187] Ibid. Section 1(3). Phytosanitary relates to the health and measures for protection of health of plants or vegetation. GA Wiles & WA Krebs (eds) Collins Concise Dictionary (1988) 903. The Committee referred to in this section was constituted under the provisions of the Agreement for the Protection of Plants in South-East Asia and the Pacific dated 27 February 1956.

[188] Ibid. Section 2 (Minister may Prohibit Import of Plants).

[189] Ibid. Section 6 (Phytosanitary Inspectors to Inspect Plants) and Section 7 (Offences and Penalties).

[190] By way of example, during 2004 – 2005 the Wantok Environment Centre was informed of various projects where it was apparent that requisite importation licences had not been obtained or the project was operating on a pilot basis without any comprehensive assessment of environmental effects. Projects included the fish farming of genetically improved fish Talapia (GIFT), farming of Australian red-claw prawns (which was subsequently closed down by the Government) and reproduction of an Australian breed species of sea-cucumber for introduction to Vanuatu waters.

[191] M Forster Environmental Law in Vanuatu: A Description and Evaluation, IUCN (1991) 59.

[192] Prevention of Spread of Noxious Weeds Act 1966 [Cap 44]. Section 2 (Importation of Noxious Weeds Prohibited).

[193] Ibid. Section 5 (Declaration of Noxious Weeds) and Schedule 1. However, from my personal observation it appears that a couple of the species listed regularly turn up at the local market places – Tobacco Weed, Guava, Wild Peanut and Wild Aubergine.

[194] Ibid. Section 6 (Areas to be Kept Free from Noxious Weeds) and Schedule 2. Section 7 (Eradication of Weeds) and Schedule 3.

[195] Ibid. Section 8 (Director of Agriculture may Issue Instructions) and Section 9 (Offences and Penalties). Under section 10 (Power of Director of Agriculture to Control Weeds), if a person fails to comply within a reasonable timeframe, the Director of Agriculture has the power to take such steps as are necessary to control or eradicate any noxious weed at the cost of the offending person and any expenses lawfully incurred by the Director are recoverable as a civil debt.

[196] For completeness - Section 2 (Interpretation) of the Environmental Management and Conservation Act 2002 defines the “environment” to mean the components of the earth and includes land and water; layers of atmosphere; all organic and inorganic matter and living organisms; and the interacting natural, cultural and human systems that form part of those components.

[197] Ibid. Section 2 (Interpretation) defines “natural resources” to mean all living and non-living, finite and renewable resources found within Vanuatu but does not include resources lawfully maintained for domestic or commercial purposes.

[198] Williams, A & Corrigan, Dr H (eds) “Country Report for the Capacity Building for Environmental Management in the Pacific (CBEMP) Programme” (1998) 9.

[199] Environmental Management and Conservation Act 2002. Part 3, Sections 11 - 28 (Environmental Impact Assessment and EIA Process).

[200] Ibid. Part 4, Sections 29 – 34 (Biodiversity and Protected Areas, Division 1 – Bioprospecting).

[201] Ibid. Part 4, Sections 35 – 40 (Biodiversity and Protected Areas, Division 2 – Community Conservation Areas).

[202] Note that Community Conservation Areas will be further assessed in the following Part 3.1 in relation to the Vatthe Conservation Area case study.

[203] Environmental Management and Conservation Act 2002. Section 45 (Regulations).

[204] Ibid. Section 41 (Offences) and Section 42 (Continuing Offence).

[205] Ibid. Section 33(2)(c) (Application for Bioprospecting permit) and Section 34(6)(a) (Determination of Application).

[206] Environmental Management and Conservation Act 2002. Section 6(3) (Establishment of Environmental Registry).

[207] Ibid. Section 9 (Purpose of National Policies and National Plans).

[208] Ibid. Section 8 (Preparation of National State of the Environment Reports). This 10 yearly report must include (a) an assessment of the state of all natural resources; (b) a review of the current uses of natural resources; (c) an assessment of the quality of Vanuatu’s environment; (d) an assessment of social and economic development trends and their likely impact upon the environment; (e) a summary of Government and private sector policies, programmes and initiatives to address and monitor environmental management and conservation issues; and such other matters as the Minister considers appropriate. The report is submitted to the Minister for approval.

[209] Ibid. Section 12(1)(a) (Activities Subject to an EIA). Section 14 (Preliminary Assessment of Applications) of the EMCA provides preliminary assessment process whereby an EIA may be undertaken to assess whether there are likely to be custom impacts. Subsequently, an application may be processed where it is determined that there will be no significant custom impacts caused by the proposal or the application includes actions that will effectively mitigate, minimise, reduce or eliminate any identified significant impact which may include custom considerations.

[210] Ibid. Section 12(2)(f) (Activities Subject to an EIA).

[211] Ibid. Section 13(c) (Activities not Subject to an EIA).

[212] Ibid. Section 19(2) (Terms of Reference for an EIA).

[213] Environmental Management and Conservation Act 2002. Sections 35(a) and 35(c) (Identification of Sites having National Biodiversity Significance).

[214] Ibid. Section 37 (Registration of Community Conservation Areas).

[215] Ibid. Section 37(1)(d) (Registration of Community Conservation Areas).

[216] Ibid. Section 37(1)(a) (Registration of Community Conservation Areas).

[217] Ibid. Section 39 (Effect of Registration) provides that landowners or the management committee formed by the landowners or Director for the purpose, is responsible for the development and implementation of any conservation, protection or management plan established for a registered CCA. The Director may provide technical or financial support for the purpose of developing or implementing the plan, but the EMCA does not operate to assume the obligations of environmental management, monitoring or enforcement.

[218] Representative owners which have been declared by the Vanuatu Court of Appeal (2002) are Chief Moses Jeffery Ova and Chief Lus.

[219] VCA Resource & Conservation Management Plan 2004 – Introduction, 2.

[220] The VCA was the first registered Community Conservation Area under the EMCA in Vanuatu.

[221] Environmental Management and Conservation Act 2002. Section 35 (Identification of Sites having National Biodiversity Significance). The Director may negotiate with custom landowners for the protection and registration of any site as a Community Conservation Area where he or she is satisfied that the site: (a) possesses unique genetic, cultural, geological or biological resources; or (b) constitutes the habitat of species of wild fauna or flora of unique national or international importance; or (c) merits protection under the Convention Concerning the Protection of World Cultural and Natural Heritage.

[222] Ibid. Section 37(2) (Registration of Community Conservation Areas). Before registering a Community Conservation Area, the Director must ensure that: (a) the objectives of the proposed Community Conservation Area are identified, and are in accordance with sound conservation practices; and (b) the boundaries of any proposed Community Conservation Area are accurately identified; and (c) consent and approval are obtained from all persons having rights and interests in any land that is to be included in the proposed Community Conservation Area; and (d) an appropriate conservation, protection or management plan is developed for the area to ensure the achievement of identified conservation objectives.

[223] Ibid. Section 37(3) (Registration of Community Conservation Areas).

[224] Ibid. Section 39 (Effect of Registration).

[225] VCA Resource & Conservation Management Plan 2004 – Objectives, 6.

1. To support the conservation and protection of indigenous biodiversity within VCA for future generations;

2. To encourage the development of community-based income generating activities which have low environmental impacts;

3. To achieve sustainable use and management of the natural and physical resources within the VCA in the regional and national interests of Vanuatu;

4. To recognise and provide for sustenance and quality of life for the communities of VCA, including established customary use of flora and fauna; and

5. To establish certain zones within the VCA and define activities that are allowed or otherwise within zones.

[226] By way of example within the respective zones, the plan generally contains rules which regulate the taking of species for traditional and customary purposes; the setting annual or seasonal limits for harvesting specified fauna and flora; prohibitions and/or absolute protection rules; designation of permitted activities; setting of buffer zones; regulation of methods and means of extraction; and guidelines or specified considerations for decisions relating to eco-tourism, income generating activities, scientific research and commercial activities.

[227] Penalties include the following: Children - First offence community work; Second offence 1,000 vatu fine; and Third offence referral to the CACC for penalty. Adults – First offence 10,000 vatu; Second offence 15,000 vatu; and Third offence referral to the CACC who may decide the appropriateness of reporting the offending to the Police for further action.

[228] Environmental Management and Conservation Act 2002. Section 41(f) (Offences)

[229] In February 2005, this alternative pathway was discussed between the writer and Mr Russell Nari (then Deputy Director of the VEU). Mr Nari agreed with that interpretation of the legislation’s offence provision. However, he went on to say that a decision for VEU to prosecute directly would be subject to departmental resources; agreement of the Public Prosecutor to proceed in that fashion; and upon being satisfied that all reasonable efforts have been made by the relevant community in terms of utilizing their own management plan and mechanisms to deal with offending.

[230] The members of the CACC consider that the significant number of recent alleged offending by outsiders may be underpinned by persons wanting to “test” whether the formal legal CCA status is real or not… and whether the new status affords any greater outcome in terms of enforcement and environmental protection within the VCA.

[231] J Bowen “The Status of Avifauna of Loru Protected Area, Santo, Vanuatu” Bird Conservation International (1997) Vol 7, 331 – 334. Key: V, Vulnerable; NT, Near-threatened; RR, restricted range; E, endemic; App 1, Appendix 1 The Convention on International Trade of Endangered Species (CITES); App II, Appendix II CITES; I, introduced species; O, Avifauna immediately outside LPA. Taxonomy taken from Bregulla (1992) with the exception of Megapodiua layerdi which is from Pekker and Mccnwan (1992)

[232] LPA is a conservation area member of WTEC and a present area of legal and technical advice being provided to the LPA is consideration of the legislative options available to formalise the protected status to compliment their kastom regime.

[233] By way of example – From the inception of the LPA in 1995, a kastom taboo has been in place for absolute protection of coconut crab and all bird species within the LPA despite national regulations which contemplated seasonal harvesting.

[234] The Management Committee has dealt with this type of offending by imposition of community work and/or a monetary fine ranging from 2,000 vatu to 10,000 vatu. Due to the absolute protected status under kastom for coconut crab since 1995, there has been significant increase in the population, size and distribution of the species within the LPA – making them prime targets for poachers.

[235] This area of environmental enforcement has proven difficult for the Management Committee because it is dependant on the cooperation and resources of the Forestry Department to monitor and enforce the terms and conditions of forestry licences against the commercial operator. As well, the boundary of the LPA is recorded by kastom and a drawn map – there is no legal survey or GPS record and therefore the enforcement process tends to become protracted and embroiled by arguments over boundary lines.

[236] By way of example – Community Conservation Area under the Environmental Management and Conservation Act 2002 or Conservation Area under the pending Forestry Act 2001.

[237] Fisheries Act [No. 55 of 2005]. Section 1 (Interpretation) “fish” means any aquatic animal, whether piscine or not, and includes any mollusk, crustacean, coral, sponge, holothurian (beche-de-mer) or other echinoderm, reptile or coconut crab, and includes their eggs and all juvenile stages.

[238] Fletcher, Dr WJ Stock Assessment and Review of Management for Coconut Crabs in Vanuatu – Executive Summary (2003) 3.

[239] Id. 6. “The current regulations stipulate that only 5000 crabs can be collected in the Torres/Banks region with a further 2000 from Santo/Malo region, leaving a very large (13,000 crab) discrepancy with the totals sold (i.e. 20,000 crabs). These extra crabs must either have come from collections in the non-quota locations such as Maewo and Erromango, or from “illegal” captures in the regions already under quota. Initial estimates from Maewo indicate that approximately 2,500 crabs were removed last year whilst the collections from Erromango were in the region of 1,500 – 2,000. This still leaves a discrepancy of 8,000 crabs. Given the restrictions imposed in the Torba region, the majority of the illegal crabs (about half) are probably coming from the Sanma Province.”

[240] http://www.redlist.org/search/details.php?species=2811. Historical scientific studies include Wells et al. 1983, IUCN 1990, and Groombridge 1994.

http://www.redlist.org/info/categories_criteria1994.html. “Data Deficient (DD) – A taxon is Data Deficient when there is inadequate information to make a direct, indirect, assessment of its risk of extinction based on its distribution and/or population status. A taxon in this category may be well studied, and its biology well known, but appropriate data on abundance and/or distribution is lacking. Data Deficient is therefore not a category of threat or Lower Risk. Listing of taxa in this category indicates that more information is required and acknowledges the possibility that future research will show that threatened classification is appropriate”.

[241] Fisheries Act [No.55 of 2005]. Section 81(2) (Repeal and Savings) provides that unless inconsistent with the Act, all regulations, orders and notices made or given under the repealed Act (i.e. Fisheries Act 1982 [Cap 158]) will remain in force as if they were made or given under the 2005 Act.

[242] The Fisheries (Coconut Crab) Regulations No. 20 of 1991 includes the following provisions: Torres/Banks Islands has a closed season during August – November each year and a quota of 5,000 crabs per year; and the Santo / Malo Islands has a closed season during October – April each year and a quota of 2,000 crabs per year. However, in practical terms the Director of Fisheries has used a discretional power for the past three years to close the season earlier when (to the best of Departmental knowledge and records) the harvest quota has been reached.

[243] The Fisheries (Ban on Coconut Crabs) Regulation No. 15 of 2004 provides that it is an offence within the Sanma Provincial area for any person to take, injure, kill or have in his/her possession coconut crab during the period from 1 May 2004 to 31 March 2007 (i.e. 3-year ban season).

[244] Refer to footnote 5 for details of the Sanma Krab Kokonas Taskforce.

[245] In my capacity as Legal Advisor for Wantok Environment Centre, I was involved in receiving the instigating complaints, assisting the Vanuatu Police with evidential investigations, and preparing the legal submissions for sentencing which were used in the Magistrate’s Court by the Public Prosecutor. As well, the Sanma Taskforce was required to supply either transportation or fuel costs for the Vanuatu Police in order to carry out their investigations and to subsequently bring the witnesses from the respective villages in East Santo to the Magistrate’s Court on the day of the prosecutions.

[246] “Krab Kokonas Taskforce hails Court decision” Daily Post, Port Vila, 12 July 2005. (Spelling correction indicated in square brackets).

[247] The present minimum wage level in Vanuatu is under 100 vatu per hour, thereby approximately 4,000 vatu per week.

[248] In summary from the “Observations” part of each sector discussed in section 2.4 of this paper, my assessment of the integration of customary considerations was as follows:

· Land – Proactive;

· Forests – Proactive;

· Fisheries – Neutral (limited change, but improved from the 1982 to 2006 legislation);

· Water – Neutral; and

· Terrestrial Biodiversity (Flora and Fauna) – Proactive, but older laws devoid.

[249] RE Johannes & FR Hickey Evolution of village-based marine resource management in Vanuatu between 1993 and 2001 (2004) 37.

[250] RE Johannes & FR Hickey Evolution of village-based marine resource management in Vanuatu between 1993 and 2001 (2004) 33.

[251] Courts Act 1980 [Cap 122]. *** Refer to Postscript. Section 4(1) (Jurisdiction of Magistrates’ Court) – Subject to the provisions of this Part and of any other law every Magistrate’s Court shall have the jurisdiction to try summarily (a) any criminal proceedings for an offence for which the maximum penalty prescribed by law does not exceed imprisonment for a term of 2 years.

[252] Island Courts Act 1983 [Cap 167]. Section 10 (Application of Customary Law) – Subject to the provisions of this Act an island court shall administer the customary law prevailing within the territorial jurisdiction of the court so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order. Also note that under Section 11 (Limitation on Penalties), the criminal jurisdiction of an island court is limited to fines not in excess of VT24,000 or imposition of imprisonment not in excess of 6 months. Under the Island Courts (Amendment) Act [No. 15 of 2001], island courts lost jurisdiction to hear and determine civil proceedings relating to land.

[253] S Farran Land in Vanuatu: Moving Forwards Looking Backwards (2002) 7.

[254] Vanuatu National Conservation Strategy (1993) 5.

[255] 1986 – 1988 Ministry of Natural Resources; 1989 – 1991 Ministry of Home Affairs, Physical Planning and Environment; 1992 – 1993 Ministry of Natural Resources; 1994 – 1996 Ministry of Health.

[256] In 1985, Government fisheries staff totalled 39. An expected shortfall in Government revenue due to cyclone damage in early 1985 resulted in Government reducing all departments’ expenditure by 10%. Fisheries Department “Report 1985” (1985) 6.