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Boedovo v Director of Lands [2012] VUSC 191; Civil Case 11-2011 (13 September 2012)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 11 of 2011

BETWEEN:

JANET BOEDOVO
Claimant

AND:

DIRECTOR OF LANDS
First Defendant

JOE ANTAS
Second Defendant

Hearing: 4 September 2012
Before: Hon. Justice Robert Spear
Appearances: Britten Yosef for the claimant
Frederick Gilu for the first defendant
Saling Stephens for the second defendant

Delivered: 13 September 2012

JUDGMENT OF THE COURT

1. This case relates particularly to the custom ownership of Venui Island which is just off the South coast of Santo. This issue came to the fore when the Director of Lands received a lease over Venui Island from Janet Boedovo at approximately the same time as he received a similar lease over Venui Island from Joe Antas. The Director of Lands declined to register either lease and indicated to both Janet Boedovo and Joe Antas that they needed to have the dispute between them resolved by the Court.
   
2. This claim seeks to review the Director's decision to decline to register the Boedovo lease and further seeks an order requiring him to do so. Certainly, if the Boedovo lease flows from the true custom owner, and there being no other lawful impediment to registration, the Director should be required to register that Boedovo lease.
   

Background

3. It appears that there are 3 blocks of land of which account needs to be taken. There is Venui mainland, Venui Island and Jingonaru land.
   
4. Joe Antas claims that his family is the declared custom owner of Jingonaru land; and this is not disputed. This is pursuant to the declaration of the Joint Village Land Tribunal of South Santo, Fanafo Canal and Malo dated 9 September 2008. However, Joe Antas asserts that Jingonaru land includes Venui Island which is disputed.
   
5. Janet Boedovo asserts that her father Molivatila Boedovo is the true custom owner of Venui mainland and Venui Island and that this Venui land is not part of Jingonaru land which lies on the mainland, adjacent to Venui mainland, and separated by the Venui River.
   
6. If Molivatila Boedovo was indeed lawfully determined to be the custom owner of Venui Island prior to the Antas family being declared custom owners of Jingonaru land, any such determination in respect of Jingonaru land and what it might encompass becomes of no significance. A land tribunal has no power to review an earlier lawful determination of custom ownership.
   
7. There is no real dispute on the facts except whether Venui Island is or is not part of Jingonaru land. There was no cross-examination required on the sworn statements filed. A chronology of events has been prepared by Mr Yosef which helpfully summarises the history in a way that identifies the pertinent issues.
   
8. On 18 February 1983, the Minister of Lands declared Molivatila (full name being Molivatila Boedovo – also known as Moli Boedovo) as the representative of the custom owners of Venui Island. Molivatila Boedovo is the father of Janet Boedovo.
   
9. On or about 27 May 1985, the Minister of Lands issued a negotiator's certificate to one Peter Morris in respect of Venui Island which certificate acknowledged that Molivatila Boedovo was the custom owner of Venui Island - identified by the ex-condominium title No. 615. An agricultural lease was then created over the Venui Island with the title reference 04/2943/007 between Molivatila Boedovo as lessor and Peter Morris as lessee.
   
10. On 2 June 1998, there was a dispute over the custom ownership of Nasulnun and Venui custom land which was resolved by a decision of the Supernatavutnao Council of Chiefs. The decision of the Council of Chiefs given 2 June 1998 confirmed Molivatila Boedovo to be the custom owner of Venui mainland and Venui Island. That decision was recognised by the Rural Lands Department of the Department of Lands in a Kastom Ona Blong Graon form issued around February 2008.
    
11. On 17 October 2007, the Valuer General forfeited the Boedovo/Morris lease for various infringements by the lessee "in favour of Moli Boedovo".
    
12. On 12 February 2008 – the Area Council of Chiefs of South Santo completed a land ownership form for the Department of Lands confirming that Molivatila Boedovo and Family were the custom land owners of Venui mainland and the island of Venui.
    
13. On 8 August 2008, the Minister of Lands issued a negotiator's certificate to Janet Boedovo in respect of Venui Island which specified that her father Molivatila Boedovo was the custom owner.
    
14. On 11 December 2009, Janet Boedovo's negotiator's certificate was renewed for a further 12 months principally because, at that time, she was overseas. Janet Boedovo was a member of the Vanuatu Police Force and at that time stationed in the Sudan on United Nations' peacekeeping duties.
    
15. Janet Boedovo returned to on 23 July 2010. Approximately 1 month later on 24 August 2010, she received a letter from the Director of Lands advising that he had received for registration a lease over Venui Island showing one Socoparo Antas as lessor and Joe Antas as lessee. The Director of Lands mentioned in that letter that he was aware that Janet Boedovo's father was understood to be the declared custom owner of Venui Island and suggested that, if she took issue with the Antas lease, she should seek assistance from the Court.
    
16. On 28 September 2010, a lease agreement for an unregistered commercial/tourism lease for Venui Island was entered into between Molivatila Boedovo as lessor and Janet Boedovo as lessee. It was lodged for registration against title 04/2943/007.
    
17. On 18 January 2011, the Supernatavutnao Council of Chiefs wrote to the Department of Lands confirming its view that Molivatila Boedovo and his Family were the true custom owners of Venui customary land.
    
18. Consideration now needs to be given to the circumstances leading up to the Antas lease being presented for registration.
    
19. On 9 September 2008, the Joint Village Land Tribunal of South Santo, Fanafo Canal and Malo, declared Family Jole Antas to be the true custom owner of Jingonaru land.
    
20. On 18 May 2010, the Minister of Lands issued a negotiator's certificate to Joe Antas in respect of Venui Island with the custom owner of Venui Island being shown as Family Antas.
    
21. On 13 July 2010, a lease agreement for an unregistered commercial/tourism lease over Venui Island was entered into between Socoparo Antas as lessor and Joe Antas as lessee and lodged for registration on 23 July 2010; as it happened, the very day that Janet Boedovo arrived back in Vanuatu from the Sudan. .
    
22. The decision of the Joint Village Land Tribunal of 9 September 2008 is not helpful on whether it considered Venui Island to be part of Jingonaru land. A map annexed to the decision simply depicts Venui Island as a geographical feature to the general area of land involved. The verbal description of the boundaries of Jingonaru land is similarly unhelpful. It is, accordingly, difficult to understand how the Minister of Lands (of that time) felt able to issue a negotiator's certificate to Joe Antas in respect of Venui Island on 18 May 2010 and to identify that the custom owner was Family Antas purportedly on the strength of the decision of that Joint Village Land Tribunal of 9 September 2008. This, in particular because the Department of Lands' own records relating to Venui Island had consistently identified Molivatila Boedovo to be the custom owner of Venui Island.
    
23. The Director of Lands wrote to Janet Boedovo on 24 August 2010 in these terms:-
    

"Re: Venui Island Lease; South Santo

We write to inform you that we are currently processing as lease over Venui Island in South Santo for registration. The lease is made between Socoparo Antas as lessor and Joe Antas as lessee. We are fully aware of your family's declaration at one time over this island and again your recent consultation with the Department of Lands on the matter.

We wish to advice that should you wish to object the registration of the lease, you should obtain an order from the Court to stop us from registering the same. We are giving you until 15 September 2010 to seek legal remedy by way of Court order to defend us from registering the said lease......"

24. Janet Boedovo attempts to provide some clarity in respect of the geographical description of the land in a coloured map produced as JP 4 in her sworn statement of 20 April 2011. This shows that there are 3 separate blocks of land in question with Venui Island clearly separate and bearing title reference 04/2943/007. On the nearby mainland of Santo, Venui custom land is depicted with title reference 04/2943/018 and shown to be separated from Jingonaru custom land (bearing title 04/2943/019) by the Venui River. If the differentiation of Jingonaru as against Venui land is as depicted in this map, then Joe Antas could only take a lease of the land if he obtained a negotiator's certificate to deal directly with Molivatila Boedovo and an agreement to lease was reached between them.
    
25. It is perhaps of some significance that the evidence of Joe Antas does not respond to the very clear statements by Janet Boedovo that Jingonaru land is quite separate to Venui mainland and Venui Island. Instead, the sworn statement of Joe Antas is brief and presents more as a legal submission. It is to the effect that any declarations of Venui Island in favour of Molivatila Boedovo are of no legal significance.
    
26. At the commencement of this hearing, I enquired of counsel whether there should be a reference back to the Joint Village Land Tribunal (that declared Family Antas to be the custom owners of Jingonaru land) to clarify whether this land included Venui Island or not. I note that Janet Boedovo was prepared for this reference to be made but Joe Antas was not. The hearing then proceeded.
    
27. The evidence before the Court does not assist with a resolution of the issue as to whether Jingonaru land does or does not include Venui Island. Accordingly, unless the evidence establishes that Molivatila Boedovo is to be treated as the lawful custom owner of Venui Island, consideration will have to be given to a reference back (probably) to the Joint Village Land Tribunal to clarify its decision in respect to Jingonaru land (whether that includes Venui Island).
    

Consideration

28. Before embarking upon consideration as to whether Molivatila Boedovo is the true custom owner of Venui Island, it is necessary to acknowledge the oft quoted decision of the Court of Appeal in Valele Family v. Touru[1]. That case dealt with a declaration by the same Minister of Lands in similar terms to that issued to Molivatila Boedovo on 18 February 1983. However, that case is somewhat different to the instant case in that it involves land where it was acknowledged that, at the time of the declaration, there was a dispute as to custom ownership. The history outlined above would suggest that, certainly at the time of the Minister of Land's declaration on 18 February 1983 on Venui Island in favour of Molivatila Boedovo, there was no dispute as to custom ownership in respect of Venui Island.
    
29. The Court of Appeal dealt with the history of the legislation following independence in relation to customary land ownership determination and reached this point:-
    

"Where a dispute over custom ownership of land arises, it is to be expected that those involved will do their best to reach agreement to settle the dispute, with such assistance as is possible from customary procedures and meetings of chiefs.

However, it is clear from the Constitution and from the Island Courts' Act that unless everyone who, at any time, claims an interest in the land is prepared to accept a settlement, the only bodies that have lawful jurisdiction and power to make a determination that binds everyone are the Courts, in the first instance, the local Island Court, and if there is an appeal, the Supreme Court."

30. This conclusion immediately points out the difficulty with attempted settlements of custom ownership disputes arranged through bodies such as councils of chiefs that are not part of the Constitutional or legal land ownership determination framework. Article 73 of the Constitution provides that all land in Vanuatu belongs to the indigenous custom owners and their descendants. Valele v Touru remains, however, clear authority that an ownership dispute must be determined according to substantive law. A descendant of a party to an ownership dispute that has been "settled" outside the legal system may reopen the dispute by claiming a custom entitlement under Article 73.
    
31. There are some important distinctions to be drawn between the Valele case and this (Boedovo/Antas) case. In particular, the first suggestion of a dispute as to custom ownership of Venui Island appears not to have arisen directly until the issue of a negotiator's certificate to Joe Antas on 18 May 2010. Of course, that still leaves open the question whether Jingonaru land includes Venui Island.
    
32. If Molivatila Boedovo is to be lawfully recognised as the custom owner of Venui Island, then the Valele v. Touru case favours the Boedovo lease. If not, there is still a question to be resolved as to whether Venui Island is part of Jingonaru land which is outside the scope of this case.
    
33. The declaration made by the Minister of Lands on 18 February 1983 in favour of Molivatila Boedovo has to be considered differently to how the similarly worded declaration in Valele v Touru was viewed by te Court of Appeal.
    
34. In this case, as there was no suggestion of a dispute as to custom ownership at the time of the declaration in favour of Molivatila Boedovo, on 18 February 1983, it can safely be accepted the "representative" of the conferment of custom ownership by the declaration is a reference to and acknowledgment of the representative basis on which Molivatila Boedovo holds the land for his family – all in accordance with Article 73 of the Constitution.
    
35. In Valele v Touru, the declaration was held to effectively place the three named men in a fiduciary role in respect of those who would eventually be determined by a court to be the true custom owners.
    
36. This distinction responds to the respective context in which each declaration was made.
    
37. The issue for this case is whether there has been a lawful determination of custom ownership of Venui Island in favour of Molivatila Boedovo.
    
38. The Law Reform Regulation 1980 was one of the joint regulations prepared in advance of Independence. It was transformed into an act of Parliament at the time of Independence on 30 June 1980. In an explanatory note given to the Regulation by the Minister of Land on 17 July 1980, the purpose of the regulations is stated "to provide an interim measure to deal with land from the Day of Independence until a National Land Law is enacted." For convenience, this enactment will be referred to as the Land Reform Act [Cap. 123].
    
39. The Land Reform Act is designed to give effect to chapter 12 of the Constitution and, as stated above, the initial explanatory note of 17 July 1980 accompanying the Land Reform Regulation 1980 states that to be so. Additionally, the long title to the Land Reform Act is "to make interim provision for the implementation of chapter 12 of the Constitution."
    
40. Under the Constitution, all land is declared to belong to the indigenous custom owners and their descendants[2]. The rules of custom are to form the base of ownership and use of land[3]. Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with the recognised system of land tenure are to have perpetual ownership of the land[4]. Parliament, after consultation with the National Council of Chiefs, was required to provide for the implementation of Article 73, 74 and 75 in a national land law[5].
    
41. There are two further provisions of the Constitution that should also be mentioned in this context; both also appearing in Chapter 12. The government is required to arrange for the appropriate customary institutions or procedures for the resolution of disputes concerning the ownership of custom land[6]. All land transactions between an indigenous citizen and another person shall only be permitted with the consent of the Government[7].
    
42. The Land Reform Act was clearly designed to provide an interim measure in respect of dealings with land from the day of Independence until a national land law was enacted. One of the difficulties at the time of Independence was that a substantial amount of land was "owned" prior to independence by non-indigenous citizens of Vanuatu. The process adopted was to treat them as "alienators" and provide the alienators with certain rights (particularly to remain on the land) while negotiating a lease with the custom owners. However, there was no guarantee of an automatic lease. While the position of alienators provided the imperative for a process by which leases could be negotiated with custom owners, the devised scheme permitted anyone to conduct negotiations with the custom owners of a block of land providing that they first had the approval to do so from the Minister of Lands. It was necessary for anyone intending to secure a lease from a custom owner of the land to apply first to the Minister of Lands for a certificate that permitted that person to negotiate with the custom owner in question – a certificate of registered negotiator[8].
    
43. Of course, all this begged the question – who was to be considered the custom owner (or owners) in each case? How was that to be determined with the necessary certainty. That is a quite separate matter.
    
44. The context in which the Land Reform Act came in to force is all explained by the learned author, Howard Van Trease in his 1987 treatise, The Politics of Land in Vanuatu: from colony to independence (Institute of Pacific Studies of the University of South Pacific). At pages 242-246, Van Trease explains, there was substantial tension between a variety of groups in Vanuatu at the time of Independence. It was recognised that there was a need for quite firm government control of the processes that were to be put into place to resolve the various land ownership issues and to satisfy the requirements of the Constitution. That provides some explanation as to why the Minister of Lands, an elected politician, was placed in this position.
    
45. The Land Reform Act accordingly gave certain entitlements to alienators (as defined) and provided a control on any negotiations with custom owners. It provided a scheme whereby leases could be settled and registered over land with the approval the Minister of Lands.
    
46. The Land Reform Act does not, and has never, specifically or expressly, provided the means by which a person could be declared the custom owner of a block of land. However, it provides a definition of "custom owners" in s. 1 of the Act
    

1. Interpretation In this Act unless the context otherwise requires –

"custom owners" means the person or persons who, in the absence of a dispute, the Minister is satisfied are the custom owners of land;

47. In the normal course, that definition of "custom owners" would simply go to assist with the understanding of the "operative" provisions of the Act. It would not be construed as an empowering provision that left it for the Minister to be able to declare that a particular person was the custom owner where the Minister was satisfied that this was so. However, that must be the effect of that definition having regard to the Act as a whole, given the absence of a specific authority being conferred on the Minister and the need for the custom owner to be determined where at all possible.
    
48. It must not be lost sight of the construction of the Land Reform Act is subject to s. 8 of the Interpretation Act:
    

8. General principles of interpretation

An Act shall be considered to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

49. The object of the Land Reform Act is (as mentioned), "to make interim provision for the implementation of Chapter 12 of the Constitution". The provisions of the Constitution have already been referred to[9].
    
50. It is necessary for the Land Reform Act to be construed in such a remedial way that it provided a means by which a custom owner or custom owners of land could be identified with necessary certainty and so that negotiations with an approved prospective lessee could take place. Where there was no dispute as to custom ownership and the Minister was reasonably satisfied of that, then surely a formal acknowledgment by the Minister that he was so satisfied that a particular person was the custom owner lawfully determined that issue. If the Minister was not so satisfied and there was doubt as to custom ownership, s.5 provided a means of referral by which either the Minister or the disputing claimants could have the issue resolved by a court. Additionally, in the event of such a dispute, the Minister could act on behalf of the "custom group" (the disputing claimants) even to the point of leasing the land in question on their behalf to an approved lessee.
    
51. It would seem curious indeed for the Land Reform Act to be construed as providing only for determining and declaring custom ownership in the event of a dispute but not when there was no dispute. With respect to Mr Stephens' argument, I do not consider Valele v Touru to say that.
    
52. The respective Ministers of Land should not be taken as lightly issuing the type of declaration of custom ownership given to Molivatila Boedovo on 18 February 1983 or the certificates in 1985 and 2008 permitting first Peter Morris and the Janet Boedovo to negotiate a lease over Venui Island with Molivatila Boedovo. .
    
53. How else could a custom owner be determined where there was no dispute except by a declaration by the Minister of Lands. It is absurd to consider that the Law Reform Act can be construed (as Mr Stephens argued) as providing certainty to custom ownership only if there is a dispute and the issue is referred to a court pursuant to s. 5.
    
Returning to the case at hand, there was clearly an unequivocal declaration e Minister of Lands (of the time) on 18 February 1893 that that Janet Boedovo's father (Molivatila Boedovo) was the custom owner of Venui Island. The lease to Peter Morris was approved on that basis in 1985. The issue of a negotiator's certificate to Janet Boedovo in 2008 demonstrates that the Minister of Lands (and thus the Department of Lands) understood this to be so. This was also recognised by a local council of chiefs (the Supernatavutnao Council of Chiefs) as far back as 1988 and again as recently as January 2011.

55. I consider that the evidence here clearly establishes that the question of custom ownership of Venui land was lawfully determined back on 18 February 1983 by the declaration of the Minister of Lands that Molivatila Boedovo was the custom owner. If I am wrong in that respect then it was certainly so determined by the certificate of registered negotiator issued to Peter Morris in 1988 and reconfirmed by the certificate of registered negotiator to Janet Boedovo twenty years later in 2008.
    
56. In those circumstances, the lease presented by Joe Antas for registration cannot be registered as the stated lessor is not the custom owner and he never has been. Joe Antas has never been approved to negotiate a lease with Molivatila Boedovo.
    

Conclusion

57. The Director of Lands will accept the Boedovo lease for registration and reject the Antas lease.
    
58. The Boedovo lease is to be duly registered against the title to Venui Island within 14 days of the date of this decision.
    
59. The claimant is entitled to her costs against the second defendant on a standard basis to be agreed or taxed.
    
60. The State (the Director of Lands) is also entitled to its costs against the second defendant on a standard basis to be agreed or taxed. The Director was drawn into this dispute by the actions of the second defendant which were without established foundation. The State took no active part in the case other than to assist the court as best it could and to indicate that it would abide the decision.
    

BY THE COURT

^[1] [2002] VUSA 3; Civil Appeal Case No. 01 of 2002 (26^th April, 2002)
^[2] Article 73
^[3] Article 74
^[4] Article 75
^[5] Article 76
^[6] Article 78(2)
^[7] Article 79(1)
^[8] S. 6 Land Reform Act [CAP 123]
^[9] Paras 40 - 41