Rotuma Joint Fra Council Submission
Rotuma Joint Fra Council Submission
Page | 1
As indigenous people, our rights are also protected by the UN Declaration of the
Rights of Indigenous Peoples of 2007. According to Article 31, the major emphasis the
indigenous peoples will be able to protect their cultural heritage and other aspects of their
culture and tradition, which is extremely important in preserving their heritage. The
elaboration of this Declaration is recommended by the Vienna Declaration and Programme
of Action (VDPA) and adopted by the World Conference on Human Rights in June 25, 1993.
The ILO, C169 - Indigenous and Tribal Peoples Convention (ITPC) of 1989 has in its
Preamble:
Recognising the aspirations of these peoples [indigenous] to exercise control over
their own institutions, ways of life and economic development and to maintain and
develop their identities, languages and religions, within the framework of the States in
which they live
According to Article 4 (1) of C169, there needs to be put in place, special
measures to safeguard indigenous institutions, property, labour, cultures and environment.
Such special measures shall not be contrary to the freely-expressed wishes of the peoples
concerned
Page | 2
In fact, the plight of the Rotuman people is known to the UN which has officially
recognised the Rotuman language on its list of endangered languages. There is also the
acknowledgment by the Fiji Department of National Heritage, Culture and Arts that the
Rotuman community is one of the most endangered groups, as far as the survival of our
culture and language is concerned.
The Rotuman tangible and intangible cultural heritage is reflected in our practices and
norms and in our allegiance to our land and sea territories. The UNESCO funded project
which is administered by the Department of National Heritage, Culture and Arts is
welcomed. Unfortunately, the Bills do not have provisions for intellectual property on
Rotuman traditional and customary practices and art forms .e.g. songs, dances,
weaving.
The responsibility and duty to protect our tradition, customs, intellectual properties,
and land and sea boundaries has now become every Rotumans assignment.
Page | 3
It is pertinent that the Bills are explained to the Rotuman people because there are
specific sections of the Bills that erode and remove our cultural inheritance, economic and
social rights and radically change our system of governance by denying the authority of our
Chiefs and the Council.
The Viti kei Rotuma (Fiji and Rotuma) catchphrase has its origin in the 1880s, a
significant factor because of its legal implications which was ignored by the Review
Committee. According to the World Methodist Council website, the Rotuma Mission came
under the Fiji District of the Wesleyan Missionary Society in 1841.9 The Church used the
catchphrase because Rotuma had an independent government (state), an independent status
but with close ties, which is still maintained despite the annexation of Rotuma to Fiji by
Great Britain in 1880.
Similarly, many Rotumans in Fiji and elsewhere have maintained close ties to
relatives on the island. The Rotumans may not be familiar with their laws, but they do know
how to reciprocate and nurture the Viti kei Rotuma connection. This is despite not being
members of the Rotuman Community as defined in s2 of Rotuma Act. The remittances that
they transmit annually give people on the island the highest per capita in Fiji. 10
The Rotuma Act (Cap 122) and the Rotuma Lands Act (Cap 138) are specific
legislations for the island. Any discourse on Rotuma Fiji issues is very significant and must
8
The emails are from Rotumans who wanted to find out about the Draft Review Report. (Annexures B, C&
D.
9
http://worldmethodistcouncil.org/about/member-churches/australia-and-pacific/name/fiji-and-rotumamethodist-church/ accessed on 22 November, 2016.
10
Page | 4
We maintain that the Review Committee did not widely consult the different
demographics of the Rotuman population. This makes the consultation process not transparent
and not accountable to the Rotuman people and any submission (s) to the contrary is
misleading.
Page | 5
1.1 The current law definition is derived from the Annexation of Rotuma document, of 17
December, 1880. (Refer Annex A). This definition was written into Ordinance 29 of
1927 (47 years later) and has remained (136 years later);
1.2 Previous governments have honoured and respected without question the
Viti kei Rotuma history;
1.3 On the other hand, the proposed definition deprives indigenous Rotumans of ownership
of marine resources between 12and 15 south latitude and 175 and 180 east longitude
from the meridian of Greenwich;
1.4 The relevant obligations are under the Law of the Sea and other international
maritime laws, UN Laws on Indigenous Rights and C169 that necessitate Rotumas
separate territorial composition and extensive rights to its own sea territory, to be
acknowledged and honoured; 11 and
1.5 The reality that Rotuma Island could become an island in Fiji instead of the ancestral
homeland of the Rotuman people, is alarming and has shocked Rotumans world-wide. 12
11
Law of the Sea Bulletin #66 of 2008; Marine Spaces (Territorial Spaces) (Rotuma and its Dependencies) (Amendment)
Order 2012 (United Nations Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs)
12
Rotuma on facebook www.facebook.com and the Rotuma website www.rotuma.net
Page | 6
2.
2.2 In the proposed law, department heads are excluded from the Council. Their counsel
is valuable to the Chiefs. This will eventually justify the irrelevance of the Council.
3.
3.1 The 7 Chiefs are also members of the FORUM OF THE ROTUMAN PEOPLE
(Forum). The Forum has 4 members appointed by the Minister and it remains to be seen
whether 2 of them are also members of the Council;
3.2 If the 2 nominees of the Minister are the same nominees to the Forum and the 7 Chiefs
being members of the Forum as well, it makes perfect sense to disband the Council.
This is an indirect way of undermining the role of the Council, an indigenous institution
and its traditional role in the Rotuman society.
4. Part 3, clause 7 (1) proposes a new body to be called THE FORUM OF THE ROTUMAN
PEOPLE (Forum). clause 7(d) gives powers to the Minister to appoint 4 members to
the Forum. Part 7, clause 23 gives powers to the Minister to make regulations,
following consultation with the Forum.
Page | 7
4.1 The proposed law transfers the administration of the Fund to the Forum and removes
the powers of the Council to decide on social and economic matters;
4.2 The powers to make regulations is also transferred to the Minister limiting the powers
of the Council to traditional protocol and customary issues;
4.3 However, any customary issues could be tabled in the Forum, if 4 of the 7 Chiefs
give their approval;
4.4 The proposed functions and duties of the Council against the pre-eminent role of the
Forum attempts to weaken the respect that Rotumans have for our chiefly system; and
4.5 It is critical that the Council remains the source of unity and harmony on the island.
5
The Appointment and Dismissal of Rotuman Chiefs do not accord with Rotuman customs
and traditions and differs significantly from the current law.
Part 4. clause 11(2) provides for the election of the district chief by all the mosegas of the
district. clause 12 (1) gives the disciplinary action on a district chief to all the mosegas.
(2) Any appeal is to be made to a Tribunal.
s18 (1) Rotuma Act. District Chiefs shall continue to be elected in accordance with
Rotuman custom...
5.1 The custom and current practice is based on a rotational basis amongst the mosegas
of the district. s18 (3) Rotuma Act provides for the Minister to remove from office
any district chief. There is no tribunal in the current law.
Page | 8
Page | 9
1.2 There are ad hoc committees that have been charged to implement duties pertaining
to land issues.
1.3 The land issues are controversial and closely linked to tradition and custom
that the full participation and co-operation of the Rotuman people is necessary.
2. Clause 7 (4.) This provision states that All Rotumans shall be registered on both
maternal and paternal lineages within the PUK ES ON FAMOR ROTUMA.
2.1 The PEFR is a new concept and adopted from the VKB for the itaukeis; and
2,2 This provision is misleading because there is no automatic entitlement to hanua ne
kainaga (clan owned land).
3. Part 5. Clause 26 (1) Transmission of Land states that The hanua ne kainaga shall
be transmitted though both the paternal and maternal lineages in the following ways
(a) In the case of paternal lineage, as to legal rights; and
(b) In the case of maternal lineage, as to the consent of majority of the male
members of the kainaga.
s4. (2) Rotuma Lands Act. The current provision gives Rotumans the choice to register
on the fathers or the mothers kainaga (clan). This registration is not to be confused
with the registration in the PEFR.
Page | 10
3.1 The current provision was rejected by the Rotuman people in 1959. It has since been
a red herring. i.e. ineffective;
3.2 On the other hand, clause 26 discriminates against women does not comply with
provisions of Chapter 2 Bill of Rights of the 2013 Constitution and provisions of
the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW). This provision is also arbitrary;
3.3 Furthermore, in the Rotuman culture, paternal and maternal land transmissions
happen on equal terms; and
s26 (1) Rotuma Act This land is vested in a single individual and on the death of the
owner, the land is inherited by the last surviving member of the 3rd generation as hanua
pau.
4.1 The current law enables the new owner to sell or gift land and still be called hanua
pau. On the other hand, Part 5 clause 29 prohibits the creation of hanua pau which is
not in accord with Rotuman customs and traditions. This is discriminatory and arbitrary.
5. Part 5. Clause 29 Creation of new hanua pau is prohibited.
s26 Rotuma Lands Act. The current law doesnt prohibit the creation of new hanua
pau.
Page | 11
5.1 This provision discriminates against holders of such land who will no longer be able
to gift or grant such land, as is customary.
6. Part 5. clause 31.Adopted Children. legally adopted child shall be deemed to not
be a child of his or her adopter.
s28. Rotuma Act. an adopted child shall not be regarded as being in existence.
6.1 This is against Rotuman culture because adoption is a common practice and adopted
children traditionally enjoy the same rights as biological children. This includes the
right to use land as a member of the kainaga;
6.2 These provisions deny the lawful rights of legally adopted children. They are
discriminatory, unconstitutional and arbitrary; and
6.3 They do not comply with Human Rights Decree 11 of 2009 which requires that
people must not be discriminated against on the basis of birth; Article 2 of the
Universal Declaration on Human Rights which provides protection in granting rights
based on birth; and Article 17 which grants specific human rights to own property
alone.
7. Part 6. clause 37. Repeal The Rotuma Lands Act is repealed.
7.1 Rotuma Lands Act (Cap 138) will lose its history and along with it, many customs
and traditional ways that Rotuman have used in the past; and
7.2 The proposed laws have provided the motivation for Rotumans to educate ourselves
on issues that relate to the island.
Page | 12
8.1 This means that all laws in Fiji could apply to Rotuma regardless of the
circumstances on the island and whether the inhabitants permit these laws or not.
Page | 13
Page | 14
Page | 15
The proposed law also prohibits the creation of new hanua pau which impinges on
the custom of giving gift or grant to relatives.
b) The itaukei social system is patrilineal against the Rotuman social system which is
matrilineal.
The Rotuman custom permits transmission of land, hanue ne kainaga (clan land)
registration on both the paternal and maternal lineages. On the other hand, itaukei
permits registration for transmission of land (mataqali land) on the paternal lineage
only.
This is not to be confused with the registration in the PUK ES ON FAMOR ROTUMA
on the paternal and maternal lineages. This latter registration doesnt automatically
grant access rights to hanue ne kainaga.
Page | 16
d) The proposed Land Use Commission provisions are mostly uplifted from the
Rotuma Lands Act. It was rejected in 1959 and is re-introduced under a different
format? Is this supposed to make the sections acceptable?
-
Property surveys;
Appeals etc.
The land issues are entwined with customary and traditional practices and require
extensive participation and co-operation of the people.
Page | 17
Page | 18
Page | 19