Category Archives: Uncategorized

Let’s go surfing…

In Episode 8 of The Customary Land Podcast I discuss several of the customary land related reviews initiated in 2023 by the Rabuka led Coalition Government in Fiji.  These include:

(1) The Review of the Great Council of Chiefs (GCC).

And, as foreshadowed by Prof Steve Ratuva in his public lecture celebrating Ratu Sakuna Day celebrations, and requested at the meeting of the GCC on Bau Island in late May,..

(2) the proposed Review of the iQoliqoli (Fishing Ground) Compensation Policy; and 

(3) the proposed Review of the iTaukei Land Trust Board (iTLTB).

This provides a segue into a broader discussion on the April 2023 Cabinet Decision to 

(4) Review of the Regulation of Surfing Areas Act (2010).

You can find the audio version here (or just search for The Customary Land Podcast in your favourite podcast player), or if you prefer you can watch the vodcast i.e. a ‘video version’ here.

The Republic and the Aboriginal ‘Voice’

In this episode of The Customary Land Podcast I explore how becoming a Republic and crafting a new Constitution fit for purpose in the 2020s offers Australia the perfect opportunity to truly recognise the Aboriginal and Torres Strait Islander ‘Voice’.

An Australian Republic means we need to replace the Crown and the Crown’s superior interest in the land with something.  If that ‘something’ is an acknowledgement of the guardianship of the land through Aboriginal and Torres Straight Islander stewardship, would this, could this, or should this affect the underlying way that we as 21st century citizens in Australia relate to real property?

The current discussions about holding a referendum in Australia to make changes to the archaic 1901 Constitution (an Anglo-centric model crafted during the Empire of Queen Victoria) to create an Aboriginal Voice fails to deal with the significant issue that we are perpetuating King Charles III as ‘King of Australia’. Imagine instead , if you will, what might change in terms of our identity as citizens if Australia were to become a Republic – something that many see as inevitable, albeit a situation which is yet to become a reality.

In this episode I draw heavily on my paper A 21st Century Citizen in a Brave New Republic.

I also reference Stan Grant’s ‘Australia Day‘ and ‘The Queen is Dead’.

You can subscribe to The Customary Land Podcast in your favourite podcast app or access all episodes here.

Alternatively, if you prefer to watch your podcasts they are also available on YouTube.

Traditional Customary ways versus Western materialism

This episode of of The Customary Land Podcast explores worldviews constitute the ‘Plurality of Registers‘ and the tension of navigating between customary and traditional relations to land as ‘ours’ versus the western materialism of possessive individualism that sees land as ‘mine’.

In part, this episode is triggered by the anachronism of a coronation in 2023, particularly when former empire and commonwealth is viewed from the  plundered and brutalised indigenous perspective. The associated myth, embeddedness and tradition leads me to reflect on our recent proposal for a CLS team to review the role in Fiji of a contemporary Great Council of Chiefs to lead iTaukei society.  These two events provide a segue to look at the customary counterpoint of the Melanesian Indigenous Land Defence Alliance (MILDA) from the perspective of Joel Simo (Symoh Joel) in a talk he gave at a meeting of AID/Watch in Sydney (14 November 2014 – the transcript is on pp.11-14 of this paper).  As outlined in their Declarations, MILDA are against and form of land registration or leasing of customary land.  This is a view that is reinforced by Act Now in PNG (see their 90 second very powerful video on ‘The Real Value of Customary Land‘). I also refer to the Declaration and Resolutions of the 2002 South Pacific Land Tenure Conflict Symposium.

You can access all of The Customary Land Podcast episodes using this link or listen in your favourite podcast player. For those of you who prefer to watch a video version, it is provided here.

The Valuation of Unregistered Land

Traditional valuation approaches are increasingly recognised as being insufficient to address the wicked valuation problems of the diverse peoples and groups that inhabit the globe from north, south, east to west. In the latest episode of The Customary Land Podcast I sit down for a far-reaching conversation about the valuation of unregistered land with Mike McDermott PhD MA FAPI FRSA.  Mike is an International Land Policy and Valuation Implementation Consultant who is also the author of Wicked Valuations and Landed Property.  He has advised a diversity of governments, development agencies, donors and professional organisations.

We discuss land policy, land reform, customary land, peri-urban developments, fitness landscapes, compulsory acquisition,  due diligence, market value, solatium and the principle of equivalence.  We explore the importance of the the personal, cultural values and norms which underpin our assessment of “value”, and how to incorporate these in the valuation of unregistered land. Mike’s innovative  approach to Wicked Valuations develops a means of engaging with highly complex valuation problems.

You can access all of The Customary Land Podcast episodes using this link or listen in your favourite podcast player. For those of you who prefer to watch a video version, it is provided here.

Confusion about Leases on Customary Land

I have always been involved in the valuation and management of leasehold interests in land. However, when you work in different countries you come to realise that all leases are not the same. For example, from my early career experience in England, the permitted improvements on residential development leases dating back to the Victorian era became an asset of the landowner at lease expiration, when the land and ‘any improvements thereon’ reverted to the holder of the superior interest supposedly in ‘good and tenantable repair’ at the end of the leasehold term.

When I worked in Fiji and other Pacific Islands from the late 1990s, I was surprised to discover that ownership in the land belonged to the customary landowners but seemingly the improvements thereon remain the property of the tenants. It took a long time to discover why this apparent anomaly had occurred… and that voyage of discovery is the focus of this week’s podcast episode Leasing Customary Land: Problem or Solution?

You can access all of The Customary Land Podcast episodes using this link or listen in your favourite podcast player. For those of you who prefer to watch a video version, it is provided here.

Lessons from Timber Creek

This week I sit down with Prof. John Sheehan AM to reflect on and explore lessons from the Timber Creek case in the latest episode of The Customary Land Podcast.

Our far-reaching discussion includes recognition (and extinguishment) of inalienable customary land rights, which are precarious, Native Title, s.51 xxxi of the Constitution of Australia (‘just terms’ compensation), and the relationship to the UN Declaration on the Rights of Indigenous People’s.  The Timber Creek case provides helpful guidance about compensation (for extinguishment) that recognises the ‘cultural loss’ relating to the indigenous connection to the land (rather than ‘solatium’).

Full High Court of Australia background to the Timber Creek case can be accessed here.

The Judgement of the High Court in the Timber Creek case is here.

John also refers to his co-authored paper with Jasper Brown and Kenneth Rayner ‘On solatium: towards a rethinking of compensation‘.

For those who prefer to watch a video version, it is provided here.

Who ‘Owns’ Customary Land?

In this episode of The Customary Land Podcast we explore who ‘owns’ Customary Land… and it isn’t as obvious as you may think!

The episode is built around an article that I co-authored with a former lawyer colleague, Krishn Shah, in which we explored customary land ownership using Fiji as a case study. Using Fiji is helpful, as Native Land Records have been kept since the time of the Deed of Cession to Queen Victoria in 1874. This sets Fiji apart from its Pacific neighbours, as well as many over Indigenous groups. Moreover, since 1940 indigenous ‘landowners’ in Fiji have had their surplus land managed by the Native Land Trust Board (now the iTaukei Land Trust Board), meaning the customary ‘landowners’ have benefited from having legal and property specialists representing then in all land dealings.

Paper by Spike Boydell & Krishn Shah
‘An inquiry into the nature of land ownership in Fiji’

Paper by Joeli Balendrokadroka
‘The Fijian Understanding of the Deed of Cession Treaty 1874’

If you prefer to watch, rather than just listen, you can view the podcast episode here.

Let’s talk about Customary Land…

So the first episode of The Customary Land Podcast is ‘live’ in your favourite podcast player (or click the link. In this episode we introduce ‘Customary Land’ and use land related Articles from the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP 2007) to explain its importance in contemporary society. And yes, there is also a video version for those who prefer to watch rather than listen…

It’s been a while…

It is almost four years since we posted on the Customary Land Solutions website!

But that is about to change. The website will be going through some ‘refreshing’ and ‘updating’ over the next couple of months.

Meanwhile, we are launching The Customary Land Podcast on 1 March 2023 as a way to discuss and socialise land issues. The aim is to publish every couple of weeks… but don’t hold us to that. Several episodes are already in post production. You can find out more and listen to the trailer by clicking Podcast in the menu bar, or following this link:

…or even watch a video version here.

Ulai meets Pope Francis to talk about Indigenous Land Rights

Ulai Baya (3rd to Pope Francis’ right)

Last week Ulai was in Rome to participate in the Third Global Meeting of the Indigenous Peoples´ Forum at IFAD The International Fund for Agricultural Development (IFAD), a specialized agency of the United Nations, is dedicated to eradicating rural poverty in developing countries. Ulai is the Pacific Regional Representative, which enables him to make the case for the rights of customary landowners on the World Stage.

In a private meeting with indigenous peoples’ representatives, Pope Francis stressed the need to  reconcile development, both social and cultural, with the protection of indigenous peoples and their territories, “especially when planning economic activities that may interfere with their cultures and their ancestral relationship to the earth”. 

“In this regard, the right to prior and informed consent should always prevail,” Pope Francis said. “Only then is it possible to guarantee peaceful cooperation between governing authorities and indigenous peoples, overcoming confrontation and conflict.”

See IFAD press release  Development should consider indigenous cultures and their relationship to the earth.

See NBC news item Pope Francis Says Native People Have Rights Over Their Lands.

Vatican Pope US Pipeline
Pope Francis, standing at right, meets with representatives of indigenous peoples attending a UN agricultural meeting in Rome, at the Vatican, Wednesday, Feb. 15, 2017. Francis has insisted that indigenous peoples must give prior consent for any economic activity on their ancestral lands — an indirect critique as the Donald Trump administration seeks to advance construction on a $3.8 billion oil pipeline over opposition from American Indians. (L’Osservatore Romano/Pool Photo via AP). Ulai Baya seated 3rd from right of camerman.