54424 JUSTICE Briefing note POOR for the April 2010 Volume 4 | Issue 3 Women, State Law and Land in Peri-Urban Settlements on Guadalcanal, Solomon Islands n By Rebecca Monson* F rom 1998­2003, Solomon Islands suffered from vio- More than 80 per cent of land in Solomon Islands is held lent conflict popularly known as `the Tensions', which in accordance with "current customary usage," 4 which is of- resulted in many deaths, the internal displacement of ten referred to as `kastom' in Solomon Islands pijin. The city tens of thousands more, and the destruction of the country's of Honiara is built on alienated land, while most land outside narrow economic base. While the causes of the crisis are the town boundary is customary land. Customary land tenure complex, they include social conflicts arising from the use of and social organization varies throughout Solomon Islands, land which remain largely unaddressed today.1 and variations exist across the island of Guadalcanal. In gen- eral terms, however, land on Guadalcanal is vested in tribes Land tenure in Solomon Islands is characterized by mul- whose lineage can be traced through the mother to the origi- tiple, overlapping arenas, norms and institutions emanating nal woman settler. Other descendants and migrants are often from customary practice, the state, and Christianity. To date, described (in pijin) as "living under" the descendants of the very little of the research on land in Solomon Islands has been first settlers. Today, descendants of those who first cleared the undertaken by women, or focused on women's perspectives land are sometimes referred to as having `primary rights', but and experiences of land tenure.2 this is not always an accurate description of historical or pres- ent practice. This research has, however, identified at least one This paper provides a brief overview of the intersection instance in which a court's determination as to the custom- of state and customary laws governing land in peri-urban ary ownership of land appears to have been followed by the settlements around Honiara, focusing on their impact upon landholding group issuing eviction notices to other long-term landowners, particularly women landowners.3 It suggests that occupants of that land. This suggests that there may be some the intersection of customary and state legal systems allows a cases in which interpretations of customary tenure emphasiz- small number of individuals, predominantly men, to solidify ing exclusivity of land rights have given rise to a hierarchy of their control over customary land. This has occurred to the rights in practice. detriment of many landowners, who have often found them- selves excluded from both decision-making processes and the On Guadalcanal, as is the case elsewhere in Solomon Is- distribution of financial benefits from the use of land. This lands, a male child or brother is usually appointed to be the contributes to social conflict and undermines the legitimacy spokesperson for all land-related issues. When decisions are of land dealings, and as the Tensions demonstrate, can ulti- made on behalf of the entire landowning group, they are often mately lead to violent conflict. * Doctoral Candidate, College of Law, Australian National University. The au- thor would like to thank Joseph D. Foukona for his insightful comments on an earlier draft. 1 See, eg. Fitzpatrick, D. and Monson, R. (2009) `Balancing Rights and Norms: Country context and land tenure Property Programming in East Timor, the Solomon Islands and Bougainville' In framework Leckie, S. (ed) Housing, Land, and Property Rights in Post-Conflict United Nations and Other Peace Operations, Cambridge University Press, pp 103­135. 2 A notable exception to this is Ruth Maetala's work, in particular Maetala, R. (2008) Solomon Islands is a scattered archipelago of over 900 moun- `Matrilineal Land Tenure Systems in Solomon Islands: the cases of Guadalcanal, Makira and Isabel Provinces' In Huffer, E (ed) Land and women: the matrilineal tainous islands and low-lying coral atolls in the South Pacific factor: the cases of the Republic of Marshall Islands, Solomon Islands and Vanuatu, Ocean. Approximately 50,000 people (or 10% of the total Pacific Islands Forum Secretariat, pp 35­57. 3 It should be noted that the focus of this paper is on landowners rather than mi- population) live in Honiara, the capital, which is located on grants, including men and women who have married into landowning groups. the largest island, Guadalcanal. 4 Land and Titles Act [Cap 113], section 2. the world bAnk made through a consultative group comprised of the chiefs Disputes about customary land in Solomon Islands must and elders. The idea of `being able to talk' about land is an be submitted to the chiefs for adjudication before the matter important one on Guadalcanal, and during the colonial pe- can be referred to the Local Courts. Chiefs' hearings are of- riod land deals were often between foreigners and men who ten quite formal, and are presided over by male chiefs. Local had the ability to read, speak and write some English.5 The Court hearings also adopt a relatively formal, Western-style ability to `speak' therefore depends partly on an individual's procedure. Their decisions may be appealed to the Custom- level of education and their skill in managing land relations ary Land Appeal Court and final appeals may be made to within the landowning group as well as with outsiders. Wom- the High Court on a question of state law or procedure (not en often have less access to education than do men so have customary law). been less likely to have been able to understand the state legal system and manage land transactions. Further, according to A review of court records for West Guadalcanal suggests some Guadalcanal people, custom dictates that women `no that the witnesses and parties to a dispute are predominantly save tok' (cannot/must not talk) about land, and that they senior male leaders, and a very small number of women must `stand behind' men when it comes to speaking about leaders. This is partly due to the idea that some individuals and dealing with land in the public arena. This norm is often have greater authority to `speak about' land than others, but explained by reference to the role of men as warriors and it is compounded by the fact that the court system is based protectors of women.6 on Western legal principles and the adversarial system. This encourages clear-cut, win-or-lose judgments, and it is per- This does not mean that women have never had a role in haps unsurprising that land disputes are regularly compared decision-making regarding land. In the past, women were to warfare. This reinforces the idea that land disputes are consulted in land matters and their knowledge of genealogies dangerous and matters for male warriors, and has implica- was highly respected.7 Today, women often influence deci- tions for the involvement of men and women in dispute res- sions regarding land through informal mechanisms such as olution. For example, women and children are often advised conversations within the household. In the areas around Ho- to stay away from meetings regarding disputes, particularly niara there are also a small number of women leaders who are if there are no police present.10 The fact that hearings at ev- registered on land titles and have been parties to land disputes. ery level are likely to be determined by male chiefs, clerks However, it is also common for women to find out about a or judges is likely to act as a further impediment to women's matter only after male leaders have reached a decision.8 If involvement. these decisions have been entrenched in signed agreements it may be difficult to challenge them, due to state legal norms Attempts at reconciling customary land tenure with and because many people are hesitant to challenge leaders in the state legal system therefore appear to have eroded the formal settings such as court hearings. role of women in relation to land. While research focusing on women's roles within land tenure systems is limited, Customary land may be leased or sold in accordance with it appears that in the past, women were able to exercise the procedures set out in the Land and Titles Act (`LTA'). In influence on decision-making through a range of social general terms this involves the Commissioner of Lands ac- interactions.11 Today, women often contribute to decisions quiring the land (through lease or purchase) after a public `behind the scenes', but the state legal system only records acquisition hearing. Registration of customary land is other- and recognizes those negotiations that occur inside pub- wise optional, and very little customary land has been regis- lic arenas such as land acquisition proceedings or court tered. The procedures of the LTA provide that the names of hearings. Many landowners, but particularly women, are no more than five `duly appointed representatives' may be unlikely to talk in these arenas because they lack the con- placed on the title. A limited review of land records suggests fidence, education, and customary authority to do so. As that it is generally male leaders who speak in land acquisition the right of women to `talk' in these arenas is restricted, hearings, and that most titles are registered in the names of male leaders. Thus, while the state legal system is based on 5 Pers. comm. Dr. Gordon Nanau. See also Kabutaulaka, T.T. (2002) Footprints in the expectation that all landowners will participate in land the Tasimauri Sea: a biography of Dominiko Alebua, Institute of Pacific Studies, dealings, this may not be the case, at least in the public arenas University of the South Pacific, Suva, Fiji, p 52. 6 Ruth Maetala has made similar observations in relation to the roles of men and established by the state. In addition, while the state legal sys- women in decision-making on Isabel: Maetala, R. op cit, p 41. tem requires that the titleholders consult with other landown- 7 Allan, C. H. (1957) Customary land tenure in the British Solomon Islands Protec- ers before dealing in the land,9 they often fail to do so. The torate, Honiara, Western Pacific High Commission, p 101; Maetala, R. op cit, p 54. 8 Maetala, R. op cit, p 54. traditional role of tribal leaders, and the notion that 'women 9 See for example the then Chief Justice Muria's comments in Kasa v Biku [2004] no save tok', has therefore been translated in a manner that SBHC 62; HC-CC 126 of 1999 (14 January 2000). 10 J. D. Foukona has made a similar observation in relation to Malaita: pers comm. limits the role of women within the sphere of the state legal Joseph D. Foukona. system. 11 See, eg. Maetala, R. op cit, particularly at pages 54 and 57. their contribution often goes unrecognized by the state le- Non-indigenous settlers often obtained access to land gal system. through informal arrangements with landowning communi- ties. Some of these arrangements were based on customary principles of sharing and reciprocity. However, in other cases the legitimacy of transactions under customary law was ques- Urbanization and the growth of tionable, because deals were struck by individuals in exchange settlements on customary land for cash, without adequate consultation of other members of the group. There is oral evidence that women were involved Prior to World War II, the population of Honiara was sparse. in these transactions, but court records regarding disputed However, development on this part of Guadalcanal increased transactions indicate that the individuals involved were pre- during the war, when the United States forces developed an dominantly chiefs and male leaders. Even where members airfield and other infrastructure. At the end of the war, the of the landowning group were consulted, controversy could capital of Solomon Islands was relocated to Honiara, and this arise because there was a lack of transparency and fairness in further concentrated economic development in the area and the distribution of revenue. drew migrants to Honiara and the surrounding region.12 Ur- banization gained momentum in the 1960s, and indigenous In other cases, non-indigenous settlers have accessed land villages developed on the outskirts of Honiara, as Guadalca- through the framework of the state legal system, purchasing nal people relocated from more remote areas. Migrants from land that has been registered through the process set out in other islands settled on government land and by the 1980s, the LTA. As noted above, such land is registered in the name these settlements were beginning to spill over from town land of a maximum of five representatives, who are usually male onto customary land.13 leaders; although in a small number of cases women are also registered as trustees of land. The purchase of registered land As settlements grew, so too did competition for land and has not always guaranteed security of tenure: in at least one conflict surrounding access to land. People from Guadalcanal recorded case, a single parcel of land was sold to multiple obtained access to land in peri-urban areas through a variety purchasers.15 Furthermore, as was the case with informal ar- of mechanisms, as did migrants. Some Guadalcanal people rangements, the `customary' nature of many of these transac- settled on land after "purchasing" it according to custom tions was dubious, as deals were often struck by senior males from the customary landowners. In Kakabona, a peri-urban who failed to consult the other landowners or distribute the area to the west of Honiara, a large tract of land was pur- proceeds of sale fairly. chased by a family in the 1930s, and was later divided up for different tribes and sub tribes.14 The ownership of this land Intermarriage is another means by which migrants have today is relatively clear in the sense that the boundaries and gained access to land. If a migrant man marries a Guadal- ownership have been determined by courts and are generally canal woman, their children will have land through their accepted by other potential claimants. Transactions such as mother's tribe. The situation is more uncertain in the case this one are rooted in customary practice and have historical of a migrant woman marrying a man from Guadalcanal. precedents, but they also involve cash and are increasingly The couple will generally have access to land for hous- commercialized. ing and gardening during their lifetime, and the man may secure his children's rights in the future through traditional Given the relatively recent history of land dealings in some transactions involving the exchange of goods and feast- areas, such as the 1987 subdivision of land in Kakabona, it ing.16 The continuation of rights to land created in this is too early to discern any trends in the inheritance of land manner depends on the relevant feasts, ceremonies and undergoing urbanization. However, a review of land records transactions being remembered in oral histories and ge- suggests that when land acquisition hearings have been held nealogies.17 However, a number of factors, including the for blocks, some of which have been subsequently registered, involvement of people in the cash economy and formal men are regularly listed as the representatives of the landown- education, and the use of English names, are contributing ing group. In some instances these men have been succeeded by their sons as the duly appointed representatives of the land- 12 Bellam, M. E. P. (1970) `The Colonial City: Honiara, A Pacific Islands Case owning group. As the number of transactions increases, it is Study' Pacific Viewpoint, pp 66­96. possible that more land will be held by families and handed 13 Storey, D. (2003) `The peri-urban Pacific: from exclusive to inclusive cities' Asia down from father to son, rather than being held by a tribe and Pacific Viewpoint, 44(3), pp 259­279. 14 It is often unclear whether these transactions have been made on behalf of the handed down the matrilineal line. There therefore appears to tribe, on behalf of a family, or on a one-to-one basis. be a tendency for people to attempt to establish relatively ex- 15 Bishop Tuhenua v Laugana [2004] SBHC 89 (Unreported, High Court Solomon Islands, Civil Case 238 of 2003, Palmer CJ, 16 July 2004). clusive title over land in peri-urban areas, which may then be 16 See also Maetala, R. op cit, p 45. passed down the male line, rather than through women. 17 See also Maetala, R. op cit, p. 46. to a loss of knowledge about history and kastom.18 Some emerge with money, otherwise, "they will just drink it and women in peri-urban areas report that their obligations in eat it."26 both the subsistence and informal sector, as well as ac- tivities run by donors, non-government organizations and The distribution of benefits from other forms of resource churches, limits their capacity to engage in the time-con- use, such as the Kongulai Water Source, is similarly problem- suming task of learning about kastom and genealogies.19 atic. The Kongulai Catchment lies to the west of Honiara and As a result, some landowners may lack the knowledge or provides most of the city's water. Land in this area has been skills to recall the histories and genealogies that are essen- registered in the name of a number of trustees, all of whom tial for asserting their rights to land. are male leaders. As is the case with logging, the role of tra- ditional `big men' or `chiefs' has carried over into the cash economy, and these men play a significant role in negotia- tions and in the signing of agreements providing access to the Distribution of royalties from logging Kongulai Catchment. The men that are listed as leaders on licenses and water sources official documents and agreements are also those that receive royalties when they are distributed. Under both the state legal Many peri-urban communities on Guadalcanal are also af- system and kastom, they are obliged to share these benefits fected by logging, which has been focused on the north coast with other members of the landowning group. However, there and central hills.20 The decision-making processes and the is a general lack of transparency and accountability as to how distribution of financial benefits associated with logging are this occurs. As is the case with logging, landowners complain notoriously problematic in Solomon Islands, and these log- that they do not know when royalties are distributed or how ging operations are no exception.21 much money they are entitled to. Some of the women inter- viewed state that when royalties are distributed by leaders, Logging in Solomon Islands occurs under the Forest Re- they are distributed to men, and used to purchase consum- sources and Timber Utilisation Act [Cap 40] (`FRTU Act'). ables such as beer or radios, rather than paying for essentials Logging companies have found the procedures set out in such as school fees.27 this Act cumbersome, and have taken shortcuts by recruit- ing individuals from landowning groups or other Solomon The inequitable distribution of financial benefits is related Islanders to act as middlemen. They have also exploited the to inequality in decision-making, which is a common fea- fact that landowning groups are fragmented, with individu- ture of resource-dependent industries such as logging and als and sub-groups competing for control over logging ben- mining. Male leaders often assume control of negotiations efits.22 A further widely-acknowledged problem arises from with government authorities or investors, and government the distinction, made in the FRTU Act, between ownership and company representatives often fail to ensure that women of timber and ownership of land, which enables individuals are adequately consulted and included in decision-making.28 who can claim timber rights to effectively turn this into land However, initial research also suggests that some landown- ownership.23 A review of available logging documentation for Guadalcanal suggests that some women are involved in timber rights hearings and in some cases are named on cer- 18 I am indebted to Joseph D. Foukona for pointing out that the use of English namessakes it difficult to preserve genealogies, and also makes it more difficult to tificates of customary ownership (Form II). However, wom- link people with land, clans and genealogies. en also regularly complain that logging activities are carried 19 Pers comm. Paula Arahuri. 20 out without consulting the majority of landowners, and in Wairiu, M. (2007) `History of the Forestry Industry in Solomon Islands' Journal of Pacific History, 42(2), pp 233­246 at p 237. some cases women have responded to this through block- 21 See ie. Gray, D (ed) (2009) Solomon Islands Diagnostic Trade Integration Study: ades and protests.24 2009 Report, Ministry of Foreign Affairs and External Trade, Honiara, Solomon Islands, particularly, pp 218­222. 22 Wairiu, M. op cit, p 238. Landowners, particularly women, also regularly report 23 See ie. Fugui v Solmac Construction Company Ltd [1982] SBHC 8; [1982] SILR that logging has destroyed their gardens, polluted rivers and 100 (11 October 1982) 24 For example, in mid-2008, women from the Kakau Valimauvo sub-tribe block- contributed to flooding, while only a small number of in- aded the road to a logging camp on Mount Austin in protest against the use of their dividuals--predominantly male leaders--benefit from tim- land without their consent. 25 See also Wairiu, op cit, p. 239. Similar observations have been made elsewhere in ber royalty payments.25 Many landowner need to be vigilant Solomon Islands: Scheyvens, R. and Lagisa, L. (1998) `Women, disempowerment if they want to receive a share of royalty payments. Women and resistance: an analysis of logging and mining activities in the Pacific' Singapore often seek to secure access to financial benefits by passing Journal of Tropical Geography 19(1), pp 51­80. 26 See also Gray, D (ed) (2009) Solomon Islands Diagnostic Trade Integration news of a distribution via word-of-mouth, and then spend- Study: 2009 Report, Ministry of Foreign Affairs and External Trade, Honiara, Solo- ing several hours or even days waiting outside the offices mon Islands, particularly, pp 218­222. 27 See also Scheyvens, R. and Lagisa, L. op cit. where payments are made. They report that it is necessary 28 See also Fletcher, L, Hickie S, and Webb A (2009) Risky Business, Jubilee Aus- for them to be waiting outside when their male relatives tralia, pp 23­30. ing groups may have more transparent and inclusive meth- centrating formal control over land in the hands of a small ods of decision-making, dispute-resolution and distributing number of people. While these individuals are obliged un- financial benefits than others. Further research is required to der both state law and custom to represent the interests of all determine whether this is the case, and if so, why. landowners, they have often failed to do so. The exclusion of a significant proportion of landowners from land transactions Landowners who argue for an increased role for women undermines the legitimacy of those dealings, contributes to in land matters often draw on kastom and Christianity, rather land disputes, and can even lead to violent conflict. The de- than the state legal system, particularly the human rights en- velopment of mechanisms for ensuring transparency and ac- shrined in the Constitution or international law. For example, countability in relation to land dealings is therefore essential one woman believed that the role of women has expanded for sustained peace and security. since the Tensions, and she explained that: Gender sensitive land programming therefore needs to God made Adam and Eve and it is a Christian prin- pay attention to the state legal frameworks and their imple- ciple that women should be included in decision- mentation, particularly the differential impacts on members making regarding land. It is a sin to not include of landowning groups. This could include: women. When we sin, there will be consequences... and now we've seen what those consequences are.29 · donors, governments and academic institutions en- couraging and supporting further analysis of state le- It is also noticeable that the strategies employed by some gal frameworks and practice, particularly as they relate women's groups during the Tensions, such as the Honiara- to the sale and leasing of land; natural resource extrac- based `Women for Peace', tended to draw on kastom and tion such as logging and mining; and the distribution Christianity, rather than the state legal system, in affirming of financial benefits such as royalties from water use women's roles in dispute resolution and peace-building. In or logging; Solomon Islands and elsewhere in Melanesia, Christian the- ologies and church women's groups play an important role in · the private sector and/or public authorities providing women's training, leadership, and networking between vil- advance notice to all landowners of pending royalty lages and across provincial and national borders.30 There is payments. This might involve a notification system a need for further research regarding the strategies employed similar to that are required by law to occur prior to land by women in affirming their role within land tenure systems acquisition hearings or timber rights hearings; by drawing on both kastom and Christianity.31 · the private sector, government ministries and state- owned enterprises considering consulting men and women separately. A recent research project regard- Recommendations and Conclusions ing the Kongulai water source found that women wanted to be consulted separately on issues regard- While it is common for Guadalcanal people to assert that ing the water source, and to be included in decision- "women are the real landowners of land on Guadalcanal", making.32 Government ministries and state-owned land records and court records generally record the names enterprises, such as the Solomon Islands Water Au- of a small number of male leaders thus solidifying their thority, should therefore consider consulting men formal control over land. The state legal system tends to and women separately. The private sector, particu- recognize the small number of individuals that have cus- larly companies engaged in resource-related indus- tomary authority to speak about land inside a public arena, tries such as oil palm, logging and mining also have therefore turning the customary `right to speak' into effec- tive ownership. 29 Confidential interview, peri-urban village near Honiara, July 2008. This has operated to the detriment of many landowners, 30 Douglas, B (2000) `Introduction: Hearing Melanesian Women' Development Bul- particularly women, who often lack the formal education or letin 51, pp 39­42, p 33. 31 For example, lessons might be learned from organizations such as Petztorme in customary authority required to speak in public arenas. While PNG, which was formed by the Katolik Mamas (Catholic Mothers) and the Unit- there is a need for further research, it appears that the infor- ed Church Women's Fellowship in order to assist women to respond to the social mality of customary systems in the past provided all land- impacts of mining in Lihir: Membup, J and Macintyre, M (2000) `Petztorme: a women's organisation in the context of a PNG mining project' Development Bul- owners with a variety of means to influence decision-making letin 51, pp 55­57. and even resist the decisions of those with recognized rights 32 Powell B, Chan T, Hoverman S, and Ross H (2007) Updated Report on Initial Consultations for Kongulai Catchment, Guadalcanal Province, Solomon Islands, to `speak about' land. However, land formalization has nar- available at: http://www.watercentre.org/projects/attachments/awrf/workshop_re- rowed the scope for participation in decision-making, con- port.pdf. a role to play in ensuring that women are adequately mal systems based in kastom and Christianity in affirming consulted and included in decision-making. This their roles in relation to land, dispute-resolution, and the might include supporting local women's groups and distribution of financial benefits. There is therefore a need encouraging the representation of women in the ne- for further research into the operation of local norms and gotiations with companies; and practices, which arguably play a more significant role in determining women's rights to land. This requires, at the · donors, the Solomon Islands Government and non- very least: government organizations considering providing programs aimed at increasing legal literacy, so that · adequate financial support for sustained research into landowners, titleholders and leaders are aware of their land tenure arrangements by local and international legal rights and obligations with respect to issues such researchers; and as the management of land transactions and the dis- tribution of financial benefits. In this regard, lessons · the wider dissemination of research findings through might be drawn from the Landowners Advocacy and active partnerships between donors, government, Legal Support Unit located within the Public Solici- non-governmental organizations and academic insti- tor's Office. tutions. Despite the above suggestions, the role and effective- Finally, gender-sensitive land research and programming ness of the state and the private sector should not be over- needs to pay attention to the different perspectives of both estimated. This research suggests that the state legal system women landowners and settlers, as well as the range of local may be exacerbating pre-existing inequalities arising from women's groups that are working to increase women's partic- (for example) kastom and access to education. It also in- ipation in decision-making at all levels of Solomon Islands' dicates that women may be more likely to draw on infor- societies. What is J4P? Justice for the Poor (J4P) is a global research and de- velopment program aimed at informing, designing and supporting pro-poor approaches to justice reform. It is an approach to justice reform which: · Sees justice from the perspective of the poor/marginalized · Is grounded in social and cultural contexts · Recognizes the importance of demand in building equi- table · justice systems · Understands justice as a cross-sectoral issue Contact us at j4p@worldbank.org and visit our web- site www.worldbank.org/justiceforthepoor for further information. Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank.