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by Sosefo Inoke

This article is not intended as legal advice. Readers must seek their own independent advice on the issues raised and in respect of their particular circumstances.


One of the things that we must do is to fix our land ownership problems. It is a fundamental requirement for development. Until we can resolve our land issues and set up the processes and procedures for the proper settlement and resolution of our land disputes I believe we cannot effectively progress. It is a problem that we must face up to now and deal with.

Some of us, maybe a lot of us, would prefer to let 'sleeping dogs lie'. But the trouble I see with sleeping dogs is that they are likely to wake up at the most inconvenient time, vicious and uncontrollable. Lets face it land disputes have been with us well before colonisation. You only have to look at our hanuju.

In this essay I will only deal with the issues on resolution of disputes by the existing formal processes. Other matters pertaining to land will be the subject of another essay.

This essay is based on my personal experiences, observations and views.


2.01  Existing Problems

Some of us that have dealt with or been involved in land disputes know of the unsatisfactory situation that exists at the moment. Disputes are not being fairly and properly resolved with any certainty and finality. Some disputes are left up in the air and unresolved. Quite often the situation is worse than it was before the attempts to resolve it. There is confusion as to how disputes are to be commenced as well as to the appropriate tribunals or forums to hear them. The procedures as to appeals are also uncertain and ineffective. There is also in my view unresolved fundamental issues as to the powers and jurisdictions of the tribunals and forums that are making decisions at the moment. If all these problems exist then there is no wonder that disputes are not resolved fairly, properly and with certainty and finality.


3.01  What Tribunal or Forum?

There are at least two ways that are presently being used to resolve disputes at first instance. You may bring an action in the Courts in Fiji or refer it to the Rotuma Council of Chiefs (RCC).

3.02  The RCC appointed tribunal

In the latter procedure, the dispute is raised with the local District Chief who then raises it before the RCC in the Council's monthly meetings. The dispute is taken back to District level where it is announced at all 7 District meetings and objectors invited to appear at the hearing on a date no earlier than 3 months. The District Officer and two RCC members, selected by the RCC I presume, then hears the dispute and makes a ruling. Those of you that have read transcripts of past land decisions will be aware that in the past the District Officer hears the dispute with two Rotuman assessors, not necessarily RCC members.

3.03  Uncertain Legalities

This was the procedure used in the past and has been continued despite the enactment of the Rotuma Lands Act which deals with all land matters. This procedure does not appear in the Act. However, it seems to be an adaptation of the procedure set out in it. The Act provides for the appointment by the Prime Minister of a Rotuma Lands Commission which hears and determines disputes. I will say more on this later. Apart from the uncertainty as to the legal basis and framework of the existing procedures, there is no guarantee of impartiality or independence in the makeup of the tribunal. The appointment of the tribunal members by themselves as it were is suspicious to say the least. I am not saying that the members are biased but like they say justice not only needs to be done, it must also be seen to be done.

3.04  No Formal Rules

Further, I know of no rules as to how the tribunal is to receive evidence and hear the dispute. For example, whether the tribunal can compel parties and witnesses to appear and give evidence on oath. I know of one case where the other party deliberately stayed away. In normal court cases the court may go ahead and make its decision based on the evidence from the party appearing before it. This was what the tribunal did. But then the party that deliberately absented itself turned around and appealed the tribunal's decision. One of the grounds used for the appeal was that it was not given the chance to be heard. That appeal looks like never being heard so the dispute remains unresolved. The disputed land is tied up and unable to be used.

3.05  Using the Courts

Parallel to the above is the court system. Both the High Court and the Magistrates Court in Fiji have been and are being used at the moment. This is despite the fact that the Rotuma Lands Act, in my view, vests jurisdiction in respect of all Rotuma land matters with the Rotuma Lands Commission. More about this later.

3.06  Possible Misuse

As there are no clear or any guidelines as to how the Courts and the RCC appointed tribunals are to operate, the system is open to abuse by rogue litigants. For example, it is possible to have the High Court grant an order (injunction) preventing a hearing before the RCC appointed tribunal proceeding, effectively frustrating the resolution process. Sometimes a litigant sees his chances of a "win" better in a court than in another tribunal so he would take all necessary steps to have his case heard in a court. It is also open to a party dissatisfied with the decision of the RCC appointed tribunal to appeal against that decision in the High Court. That appeal may take years, irrespective of its prospects of success, and this too may be used to frustrate the resolution process. Similarly, for appeals from the Commissioner Eastern.


4.01  Duality of Processes

Again there at least two ways that an appeal can be brought. The first is by way of the High Court as I have referred to above. The second is to the Commissioner Eastern. There is also the possibility of a further appeal from the Commissioner Eastern to the High Court of Fiji.

4.02  The Courts.

Again, the High Court in Fiji is being used despite the uncertainty, in my view, as to its jurisdiction and powers. This matter has not been raised for decision by the Court because it has been assumed that the Court has unlimited jurisdiction and powers over Rotuma land matters.

4.03  The Commissioner Eastern

The origins of this second method, like the RCC appointed tribunal, appears to be an attempt to follow the Rotuma Lands Act. The Act provides for appeals to be heard by the Commissioner Eastern sitting with two Rotuman assessors appointed by the RCC to advise him. I am not aware of any appeal that has been decided in this way despite the referral of several appeals to him.

4.04  Uncertain Legalities

The problems inherent in a system with no clear legal basis or framework are also present. For example, I am not aware as to the rules of appeal and to the Commissioner's powers e.g. whether he can rehear the matter and admit further evidence or is he limited to deciding whether the decision appealed from is a reasonable one. All these uncertainties do not lend themselves to an effective system for dispute resolution.


5.01  Rotuma Lands Commission

I have mentioned earlier that there is a piece of legislation called the Rotuma Lands Act which deals with Rotuma lands. This Act sets out the law relating to all matters on Rotuma lands--from land ownership, registration and dealings to resolution of land disputes. The Act provides for the appointment of a three-member Rotuma Lands Commission (RLC) by the Prime Minister. One of the functions of the RLC is to hear and determine land disputes. Unfortunately, to date there has been no RLC appointed. This has created much of the confusion and the problems that I have referred to above.

5.02  Jurisdiction

The Act I believe gives the RLC exclusive jurisdiction in Rotuma land matters. It "charges the RLCwith the duty to decide all disputes" on land ownership. The Act also provides for an elaborate system and procedures for the hearing and determination of disputes and appeals. For example, notice of the dispute is to be given not only in Rotuma but in Fiji as well so that all interested Rotumans are made aware and have the right to appear and be heard. Further, the Commissioner Eastern's decisions on appeals, according to the Act, are to be conclusive and final. What all these mean is that the RCC appointed tribunal has no powers to hear and determine land disputes. Similarly, the Courts, to hear disputes at first instance, and, except in a very limited way, to hear appeals. The fact that the RLC has not been appointed does not in my opinion change the situation. If I am correct then all the decisions that have been made on Rotuma land matters since the Act came into force are invalid and may be set aside by the High Court of Fiji.

5.03  Finality

The end result of all these is that disputes are not being and will not be determined with any finality. One of the basic elements of any system for resolving conflicts is that the resolution of the conflict must be conclusive and final. Otherwise it will not bring an end to the conflict. The lack of finality will also create other problems. For example, people will have no confidence in the system and will not use it to resolve their disputes and will even ignore its rulings and findings. What we have at the moment is not far off from this situation.


It does no take much observation to conclude that our land disputes and ownership issues are not being properly and conclusively addressed and resolved. The multiplicity of tribunals and forums with serious uncertainties as to fundamental legal issues such as their powers and procedures do not lend themselves to an effective system of conflict resolution. It is a disputant's nightmare and a lawyer's delight.

I am not an alarmist but I believe land ownership will be in chaos unless something is done now. The appointment of the Rotuma Lands Commission must be done immediately as it is vital to the effective resolution of land disputes. Equally as important is the registration of land ownership and dealings which is the other function of the Commission. So long as we choose to ignore it I believe our social, political and economic development will be hampered. The little land that we have will be tied up in unresolved feuding and will not be used to its full potential, or worse, benefit only the few that have access to good lawyers and powerful political friends.


Send responses to this essay to Rotuman Forum for posting. Please include your full name and current home city.


From Major-General Jioje Konrote (18 April 1999)

I have read Sosefo Inoke's article on Rotuma Land Disputes with great interest. How I wish all our kainaga (particularly the chiefs and elders ) could read it and understand what he is trying to say, but more importantly do something to improve how those in authority are presently trying to deal with the issue.

Regrettably I have followed so many faeag hanua which ended up in more confusion, animosity and disillusion in the system amongst our people because of the absence of a legal forum under the existing Rotuma Act to adjudicate fairly and come up with an acceptable outcome.

Yes, you are quite right. What we need is the immediate appointment of a Rotuma Land Commission as the present status quo is a disputant's nightmare and a lawyer's delight, to use your own words. I strongly believe that this a priority issue which warrants the immediate attention of the Rotuma Council and whoever is going to replace Paul Manueli as our representative in Parliament.

From Tevita Katafono in Sydney (2 November 2002)

It is to my great regret that I didn't read this article earlier, for it is about the most important issue that Rotumans have to face today, whether they like it or not. It would seem that the dogs are not just lying , they are in deep sleep and it is high time they be awakened. As a lay person with matters regarding the legal system, I thank the learned Sosefo Inoke for his clear and simple presentation of facts and arguments; regrettably the problem at hand cannot be seen in the same light. Can someone update me as to the latest on the Rotuma Lands Commission? Has there any progress in the appointment of such a body? It baffles me as to why there is such delay in establishing the RLC--that's of course if there isn't one already appointed yet. With my limited knowledge of Rotuma land ownership, I believe it would be an enormous undertaking for the RLC in resolving land disputes, given the fact that our land ownership goes hand in hand with family lineages, which can span back generations. Needless to say, a dispute over one parcel of land can literally involve half the population of the island. I would imagine that there is a legal framework within which the RLC would work, and I guess that this would include such requirements as the establishment of clear and definite land boundaries. This I believe is as highly contentious a matter as the ownership of land, for not only are we dealing with disputes over single parcels of land, but we are likely to involve disputes with neighboring owners. I admire all those who are actively pursuing this task and can only offer you my moral support. I am not sure if this issue is on the current agenda within the Rotuman community, but I hope it is, for as Jioje Konrote stated, this is a priority issue which warrants immediate attention.

From Henry Enasio, Sydney Australia (31 May 2005)

Sosefo has written a brilliant article expressing his personal opinion with regard to land disputes.

Upon reading The Rotuma Lands Act, I have to concur with him that there are a lot of uncertainties without any clear jurisdiction to resolve the land disputes in Rotuma. For without the Rotuma Lands Commission to hear disputes, the Act is opened to interpretation and confusion. It's definitely convoluted and a legal quagmire, which is to our detriment but of financial benefit to the legal profession.

However, having said this, to quote The Constitution Amendment Act 1997 C13 S186(2) Customary laws and customary rights:

"the Parliament must have regard to the customs, traditions, usages, values and aspirations of Fijian and Rotumans ."

This reiterates the Rotuman Group Rights of Customary Laws and Rights. I am of the opinion that the Act is quite clear, and that Parliament must take into account all those values which leads me to believe that a Rotuma Lands Commission must cater for these too, including an understanding of:

1. The make up of our society, focusing on the family unit rather than the big picture and its entirety; this will assist in an understanding of the Acts.

2. The meaning of hanua pau, hanua ne kainaga and hanua ne 'on tore under customary laws.

For this purpose, the core family is usually the parents; then comes the children, grandchildren, and great grandchildren, and the extended family is where we have the uncles, aunts, nephews, nieces, cousins etc.

Accordingly, a couple is the husband and wife, and when children are born to them we say iria 'es lelea' ne 'es tor. Also when their children have children of their own we say the couple ma 'oria ma'ma'piag ne 'es tor and so on. To simplify this, Rotumans use the terms, pau, tore, and kainaga. For further illustration of the above :

  Parents 2nd Generation 3rd Generation 4th Generation
Pau No child      
Tore 1 child--> 1 grandchild---> 1 great grandchild--> 1 great-great grandchild
Kainaga >1 child--> Many cousins (extended family)---> kainaga--> kainaga


1. Hanua Pau

is commonly known as freehold land and under our Customary Laws; the parents have the right to dispose of the land as they wish or see fit, provided that a document is deposited with the D.O detailing the transaction. Our Customary Laws also dictate that hanua pau automatically becomes either hanua ne 'on tore or hanua ne kainaga, depending on the number of children and grandchildren born in the second and the third generation and thereafter, given the first are always that of the parents.

2. Hanua ne 'on Tore

is when the hanua pau or the freehold land is passed on to an only child at the death of the parents and to an only grandchild at the death of his/her parents and to an only great-grandchild at the death of his/her parents, and so on. Rights in the land are also passed on accordingly and the rights of disposal are similar to that of hanua pau.

3. Hanua ne Kainaga

The freehold land or hanua pau automatically becomes clan land or hanua ne kainaga when more than one child is born to the parents and more grandchildren and great-grand grandchildren are born. Our long standing tradition of Customary Laws and Rights are that all clan members have an undivided ownership with indivisible rights to the land where an appointed overlord (pure) oversees it. Our Customary Laws also protect the members' rights from any deceptive action of the overlord in that tradition dictates that the right of disposal of hanua ne kainaga or clan land rests entirely with the full agreement of the adult members of the clan who are aged 21 years and over in Rotuma and Fiji.

Thus, in the absence of the Rotuma Lands Commission, hanua ne kainaga lands are protected from unscrupulous dealings in that they cannot be gifted, sold, or bought without the agreement of all the adult members of the clan in Rotuma and Fiji.

Surely most of us know the different clans we belong to in Rotuma and the lands owned by our paternal and maternal clans. Thus any uncertainties with regard to land disputes in Rotuma should mostly involve boundaries. They should rarely involve the intricacies of hanua pau, hanua ne 'on tore, and hanua ne kainaga when we have long-standing customary laws, but this I see as more easily said than done.

From Sosefo Inoke, Suva, Fiji (17 June 2005)

I, like many of us, don't understand why the push for registration of Rotuma land ownership to be the same as that for the Fijians.

There is no basis at law for such a one-sided land ownership system these days.

If anything, it is against the anti-discrimination laws and the provisions of the Constitution. I am surprised that the Fijian women's rights movement has not lobbied the Human Rights Commission to pressure the government into changing their land ownership laws.

Unfortunately, for the Rotumans the Rotuma Lands Act remains in the law books as law. Whilst the Rotuma Lands Commission remains non existent it has no real impact. It should not be difficult to change the Act because it seems most Rotumans do not accept the law as it stands. All it needs is our parliamentary representative to lobby the Government, through the Attorney General, to pass a bill amending the provisions in the Act dealing with land ownership.

One of the practical difficulties with setting up a Lands Commission is the cost. It would cost, I would hazard a guess, nothing short of a million or two.

As the law stands under the Rotuma Lands Act, the Commission decides virtually all matters on land ownership. These matters could be grouped into two broad classes: (1) matters relating to ownership and boundaries on the one hand, and (2) registration of ownership on the other. If cost is an issue in setting up the Commission, my suggestion is to set up an ad hoc body to process the registration of lands that are not in dispute so that these owners may be able to lease or deal with their lands through trusts and other legal vehicles. My information is that ownership of the majority of the lands in Rotuma is not in dispute. Of course there may be some doubt as to the validity of such registration whilst the Act remains unamended, but at least future disputation may be avoided in the interim and when the Commission is set up, most of the ground work would have already been done and the lands in dispute would have already been identified.

The Rotuman Chief

There is one other matter which goes hand in hand with land disputes. It is the matter of chiefly title disputes. Your readers might be interested to read a very enlightening study by Alan Howard titled: "The Rotuman District Chief." I was surprised--excuse my ignorance--to learn that the Rotuman Chief did not hold title for life. There is a growing belief that the Rotuman Chief held his title for life in the same way that a Fijian Chief does. The Rotuman Chiefly title is akin to holding an office in the same way that politicians hold office. The Chief in the old days could be removed by his descent group for abuse of office. This puts a completely different light on this, doesn't it?

I, like many of us, don't understand why the push is for registration of Rotuma land ownership to be the same as that for the Fijians.

From Henry Enasio, Sydney Australia (17 July 2005)

In addition to Alan and Jan, Sosefo is another of my favourite contributors to this website. For a while I thought we had lost him, but I am glad to read his contributions again.

A great article which Alan and Jan also wrote is "Ritual Status and Power Politics in Modern Rotuma," in particular the section entitled "Rotuman and Fijian Chiefs: A Comparative View." They quite rightly point out the issue of the duration of the holder of a chiefly title. Our chiefs can resign or be forced out of office by the concurrence of the Prime Minister's Office, which currently includeds Rotuma's portfolio. I am not ashamed to admit that this happened to close members of my clan from my maternal side, viz:

1. My grandfather Chief Garagsau Alpat

His father was Vaniak Alpat, who was forced out of office on the basis of a false accusation that he was having an affair with 'Erteasa. I want to set the record straight; he did not have an affair with her as claimed. In fact, Garagsau was set up. Although they were seen together talking at Rano Ti'u whilst he was enroute to Rano, nothing happened. But on the basis of that false accusation he was forced out of office. The incumbent Chief Teviat Apao, who helped orchestrate it, only lasted about three years until he died, with a last message asking Garagsau la fau'ak ia. It was also said of all those involved with the whole issue that they died mysteriously, whereas my grandfather lived to a good old age of 86 years. Thus it reminded me of our Rotuman saying, ana haunua ma 'on mafa, which Vilsoni's movie, "The Land Has Eyes," aptly portrays.

Also, a recent happening reminded me of this. As the result of a fight within my mother's clan, the turn and the title was handed to another clan. Afterwards, those who got heavily involved and lied about it died mysteriously too. The incumbent was plagued with sickness and lasted only about three years. I believe he only attended about five Council meetings. My sources also told me that when his sickness got worst he asked Gagaj Lagfatmaro to consult the spirits and was told that the only way he would recover was to relinquish the title, which he refused to do and eventually died.

2. My Uncle Alpat Kaitu'u

He was my grandfather Garagsau's sister's son. He was forced out of office for cruelty. I have to agree that was the case, and it has been my mission in life to see that such behaviour never happens in the clan again. It makes me feel ashamed, for it has spoiled the clan and our standing in the district of Itu'ti'u. My advice to any future aspirants from my uncle's family to the title is to think again.

We should be appreciative of the fact that Alan and Jan have pointed out to us the intricacies of the office of district chief. Also, thanks to Sosefo for his timely reminder of another aspect and cause of Rotuman disputes.

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