Unit 1 – Fisheries Policy Processes, Institutions and Systems – Lecture Notes – Pio Manoa – Nov 2007

UNIT 1 FISHERIES POLICY PROCESSES, INSTITUTIONS AND SYSTEMS

NATIONAL INSTITUTIONS AND THEIR POLICY AND LEGISLATIVE FRAMEWORK

Review of national institutions and systems and their policy and legislative framework

National institutions and systems responsible for coastal fisheries management in the PacificIsland region vary from one country to another. The differences are due, among other things, to the recognition of customary/traditional rights and interests within constitutions and/or national laws, the legal history of a country, government structure(s), and the ability of local communities. This lecture reviews national institutions and systems and their policy and legislative framework and discusses differences and similarities.

Expected duration:1.5 hours

Introduction

National institutions and systems responsible for coastal fisheries policy-making and management in the PacificIsland region vary from one country to another. There are ‘formal’ or introduced institutions and systems for policy making and traditional or customary institutions and systems. In the majority of countries in the region, the two institutions and systems may be found but the recognition accorded to either system differs in each country.

The institutions that one can find today are a combined product of the impact of administrations (old and new) and traditional systems of management. Countries which operate under a federal system of government such as the Federated States of Micronesia and Palau may have an additional tier of institutions compared to countries that do not. Countries such as Solomon Islands, Papua New Guinea and Fiji have provincial governments/administrations and the role of provincial administrations in policy making is specific to their areas of competence.

The lecture will first explore historical impacts and then go on to describe the situation in a number of PacificIsland countries. After this, a discussion on the policy making potential of national institutions would be made.

Historical Impacts on existing Institutions and Systems

The form of existing national institutions and systems is the combined result of years of colonial administration, the recognition of traditional/customary participation, and contemporary developments.

Throughout the PacificIslands region there are unique national institutions and systems established. In former British colonies such as Solomon Islands, Papua New Guinea and Fiji there are generally three tiers of institutions at the national, provincial and district levels. While the national institutions have national policy making competence, the role of provincial institutions in policy making is specific to their areas of competence. For instance, in the Solomon Islands the Provincial Government Act indicates the areas in which the provincial government may introduce policy and laws.

In contrast to a provincial set up, a federal system of government can be found in the Federated States of Micronesia,Palau, and the Commonwealth of Northern Mariana Islands for instance. In these countries, there are also three tiers of institutions: federal, state, and district/local levels. All these countries have adopted a system of government similar to that of the United States.

The level of recognition of traditional/customary institutions and systems today depends mainly on the extent of recognition of previous administrations. The Fiji case study below shows that the first substantive British governor was instrumental in establishing a separate legal system for indigenous Fijians. Although a separate system exists today, many aspects of customary institutions need to be clarified further. On the other hand, some administrations in the region have accorded strong powers to traditional institutions while others have not.

Fiji Case Study:

Fiji was ceded to Britain on 10 October 1874 and was a dependency for ninety-six years. Fiji’s legal system was thus influenced greatly by the British Crown, her representatives and subjects. The Deed of Cession signed in 1874 is regarded as the “fundamental charter of the Fijian people’s rights and liberties under the British Crown, in particular as confirming them in ownership of their lands”.[1] A few days prior to the signing of the Deed, eminent Chiefs met Sir Hercules Robinson, representative of Queen Victoria, and stated that they would “trust to the Queen’s justice and generosity as their Sovereign and Highest Chief to return to them all or whatever part of their gift she may think right,” and “to govern them righteously and in accordance with native usages and customs.”[2] Protection of indigenous customs and interests is recognised in the Deed. This influenced the creation of a separate legal system for natives in addition to that provided for Europeans and other foreigners.

A central element of the native legal system was the use of customary law by the judiciary. Fiji’s first substantial Governor Sir Authur Gordon (later Lord Stanmore), while speaking on the revocation of a 1905 law allowing for the alienation of native land in the House of Lords on 16 July 1907, said that at Cession “we told them that their customs and laws, so far as they were not absolutely objectionable and immoral, should be maintained”.[3] Even after leaving Fiji, Gordon espoused the view that native customs and laws not “objectionable and immoral” were valid and binding upon natives. Native regulations were developed in conformity with customary laws and practices. So native magistrates and European magistrates in provincial courts were required to be familiar with customary law and language.[4]

A year after assuming office Gordon enacted the Native Affairs Ordinance which enabled the creation of the Native Regulation Board (NRB) with powers to make regulations with regard to marriage and divorce of natives, succession to property, powers of native courts and magistrates in civil and criminal proceedings, and other matters for the good government and welfare of Fijians.[5] Later the NRB was replaced by the Fijian Affairs Board. Although regulations of the NRB required approval of the Legislative Council, this was generally given without question.[6] The NRB was able to provide for a fine of up to £50 or a term of imprisonment not exceeding a year or both. The first regulation made by the NRB permitted the appointment of native officials with administrative responsibilities in various provinces.[7] The administration was supervised by the Secretary for Native Affairs, with the assistance of provincial chiefs (roko) and district officials (buli) across twelve provinces and eighty two districts.

The first native lands ordinance enacted in 1880 established the Native Lands Commission (NLC) which was responsible for the survey of land boundaries of different native owning units, settling boundary disputes and keeping records of surviving members of landowning units in a list called, “Na i Vola ni Kawa”.[8] Native land ownership was recorded in the register of native lands and surveyed boundaries on NLC sheets. These records are vital to the administration of native land in Fiji because they provide information on ownership and boundaries of native land, and where consent needs to be sought.

The “Na i Vola ni Kawa” now commonly referred to as the “Vola ni Kawa Bula” or register of the living, is relied upon to determine ownership of native land and fishing grounds, and whether one is Fijian.[9] Eligibility for registration is governed by custom, tradition and practice. A person whose father or any of whose male progenitors in the male line is or was the child of parents both of whom are or were indigenous inhabitants of Fiji is eligible as of right to be registered. Across Fiji, custom differs in rules on the choice of whether a person be registered as a part of the mother or father’s unit. Generally, an illegitimate child can be registered if the mother is registered and the mother’s unit approves of the registration, but all needs to be in accordance with the custom, tradition and practice prevailing in the area concerned.[10]

The Native Fisheries Commission was established in 1958 and is responsible for determining customary fishing rights ownership and the delimitation of boundaries of the respective rights owners. According to section 14 of the Fisheries Act Cap. 158, the Commission is obligated to determine customary fishing rights in each province of Fiji which are “the rightful and hereditary property of native owners”. Whilst Native Land Commissioner David Wilkinson carried out some work on customary fisheries boundaries and ownership in the 1890s, most of the investigations and enquiries were undertaken between 1958 and 1967.[11]

Since Cession, the State owns all inter-tidal land, seabed, subsoil and reefs in addition to controlling use and access to traditional fishing grounds. Indigenous owners are only given preferential usage rights but this too is ambiguous. Section 13 of the Fisheries Act Cap. 158 states that:

…it shall be an offence for any person to take fish on any reef or any kai (cockle) or other shellfish in any area in respect of which the rights of any mataqali or other division or subdivision of the Fijian people have been registered by the Native Fisheries Commission in the Register of Native Customary Fishing Rights, unless he shall be a member of such mataqali, division or subdivision of the Fijian people who does not require a licence….

A similar provision is found in Kiribati. Section 21 of the Fisheries Ordinance supports the protection of native customary rights and also gives preferential usage rights to traditional owners:

Protection of native customary rights
21. (1) No person shall take fish in any sea or lagoon area or on any reef forming part of the ancient customary fishing ground of any kainga, utu or other division or subdivision of the people unless he shall be a member thereof or shall first have obtained a licence so to do under the hand of the Minister who may grant or refuse any such licence at his discretion.
(2) A person who contravenes subsection (1) shall be liable on conviction to a fine of $200 and to imprisonment for 6 months.

Role of National Institutions in Fisheries Policy Making

In any PacificIslandState or territory, there are express and implied powers given to various national institutions in the development or implementation of policy. The introduced institutions have been influenced by previous colonial administrations or existing administrations. For example, former British colonies in the region have adopted the Westminster system of government.

The Westminster system is simply a democratic, parliamentary based system of government. There is ceremonial figurehead who is the theoretical source of power. In most Pacific countries, the President or Governor would assume this role. Executive authority is exercised by the Executive. This Executive is led by a Prime Minister and Cabinet. Most Westminster parliaments have a lower house and a smaller upper house. The upper house is usually referred to as the Senate. Senate plays an important role in law-making as it considers all Bills before making recommendations to the lower house.

National fisheries policy-making is primarily the domain of the Executive. But some countries such as Kiribati bestow broad powers on the President in the making of policy. In this instance the President also exercises executive authority in making policy but in most cases the President/Governor merely assents to Bills recommended by parliament. Parliament in making laws and debating matters of national concern are also involved in policy making.

The form of government in former United States protectorates/administrations differs from the Westminster system. Nevertheless there are similarities in that there is a President, Ministers, Congress or other house with constituency representatives, and the legislature. More information on the example of Palau is provided below.

In countries where traditional law and practices are recognized, national traditional institutions would also contribute to policy making. Examples of these institutions are the Council of Traditional Chiefs in Palau, Council of Iroij in the Marshall Islands and the Great Council of Chiefs in Fiji.

Kiribati:

The Kiribati Constitution is the supreme law and declares Kiribati a sovereign democratic Republic. The Constitution states, among other things, that “the will of the people shall ultimately be paramount in the conduct of the government of Kiribati” and “the natural resources of Kiribati are vested in the people and their Government”.[12]

The Head of State and government is the Beretitenti[13] who is elected by the people. The Vice President or Kauoman-ni-Beretitenti is appointed from the Ministers by the Beretitenti. The Cabinet is also composed of Ministers appointed from members of the parliament or Maneaba ni Maungatabu. Article 45 of the Constitution vests the executive authority of Kiribati in the Cabinet, which shall be collectively responsible to the Maneaba ni Maungatabu for the executive functions of the Government. The Beretitenti has wide powers and unless it is otherwise provided by the Constitution or any other law, he may “act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any other person or authority”. This is a significant discretion in terms of law and policy making.

Aside from the executive, the Constitution provides broad powers and functions of the legislature or Maneaba ni Maungatabu.[14] The legislature is composed of thirty seven elected members and has the power to make laws for the peace, order and good government of Kiribati. The Beretitenti has to assent to a Bill proposed by the legislature and may only refuse his assent if he considers that the Bill is inconsistent with the Constitution.[15]

Examples of Dual Systems

Dual systems refer simply to countries where introduced and traditional systems coexist.

Samoa:

The community based system in Samoa is a good example of the dual system and is addressed in greater detail in latter parts of the course.

Fiji:

A historical overview has been provided earlier.

In addition, unlike a number of countries in the region the relationship between customary law and common law in Fiji is not clear. This needs some attention as the policy making powers of traditional leaders in their respective jurisdictions needs to be clarified. A recent example of how the two systems have conflicted is the turtle harvest for a national conference of a major Christian denomination.

Under Fiji’s fisheries legislation there is a moratorium in place on the harvest of turtles and their eggs. The province hosting the national conference, as is normal practice, made sure that conference participants from other parts of Fiji were given the best hospitality. The traditional leaders supported the harvest of turtles for a feast. Traditionally turtle meat is considered a chiefly delicacy. When the situation was exposed in the media, the fisheries interim minister stated that there was a “communication break-down” and implied that the ministry had been in the wrong.

The situation highlights potential conflicts between traditional rules and legislation. In this case, the actions of traditional authorities prevailed as there were no sanctions placed.

Palau:

Palau is governed by three branches: the Executive; a Legislature; and the Judiciary. In addition, the President is advised by a council of traditional chiefs on matters concerning traditional laws, customs and their relationship to this Constitution and the laws of Palau.

The Executive consists of the President, Vice President, and eight Ministers appointed by the President with the advice and consent of the Senate. The eight ministries are: Commerce and Trade; Community and Cultural Affairs; Education; Finance; Health; Justice; Resources and Development; and State. The Constitution prohibits an individual from serving in the Cabinet and in the Legislature or Olbiil Era Kelulau at the same time.

The Legislature consists of a Senate with nine members and a House of Delegates with sixteen members, one representing each State. Article IX.5 of the Constitution provides that the Olbiil Era Kelulau shall have, among other powers, the power to regulate “the ownership, exploration and exploitation of natural resources”, the power to delegate any power to the States, and the power to enact any laws which necessary and proper for exercising these powers and all other inherent powers vested by this Constitution in the government of Palau.

The national government is responsible and is mandated to take ‘positive action’under Article VI of the constitution for the attainment of national objectives and the implementation of national policies relating to, “conservation of a beautiful, healthful and resourceful natural environment; promotion of the national economy; protection of the safety and security of persons and property; promotion of the health and social welfare of the citizens through the provision of free or subsidized health care; and provision of public education for citizens which shall be free and compulsory as prescribed by law”. The President is the chief executive of the national government.

Major government powers including but not limited to defense, security, or foreign affairs may be delegated by treaty, compact, or other agreement between the sovereign Republic of Palau and another sovereign nation or international organization, provided such treaty, compact or agreement shall be approved by not less than two-thirds (2/3) of the members of each house of the Olbiil Era Kelulau and by a majority of the votes cast in a nationwide referendum conducted for such purpose, provided, that any such agreement which authorizes use, testing, storage or disposal of nuclear, toxic chemical, gas or biological weapons intended for use in warfare shall require approval of not less than three-fourths (3/4) of the votes cast in such referendum.