Nena Hicks *
Custom law in Niue, as elsewhere in the Pacific, continues on the one hand to defy categorisation and on the other to enjoy considerable community support.1 It is this support which environmental lawyers identify as being essential in underpinning the objectives of sustainable development and environmental protection. The identified role of custom within the proposed Huvalu Forest Conservation Area of Niue demonstrates that even small nations with formal western style legal systems and the pervasive influences of overseas aid and remittances continue to recognise custom law. In this paper the Huvalu proposal is discussed and a process for integrating policy and practice is documented.
Once two systems of law are seen to co-exist within a country, that country is said to have a pluralist legal system. Typically, as in Niue, this means a modern written set of laws geared towards nationhood and development and a custom law system which continues to operate, particularly in the private sphere. In the Huvalu area, for example, both the fono and tapu which are forms of customary control are evident. These are used to regulate resource use and to create protected areas respectively. If they are contravened, the penalty is severe sickness2. Other custom law, such as that relating to land tenure, became part of the formal system through legislation.
In line with International Law initiatives, and in acknowledgment of the need for community support for policy implementation, the Huvalu project document has as its objective the conservation of existing biodiversity
"through the development of village managed activities founded upon sustainable resource exploitation practices."
This initiative followed the submission in May 1995 of a project preparation document - Huvalu Forest Conservation Area Project - by the Environment Unit of the Community Affairs Department to the South Pacific Biodiversity Conservation Programme (SPBCP).3
In order to engender community support, consultation with the two villages in the proposed conservation area of approximately 5400 hectares4 is carried out by the Niue Environment Unit. This area completely encloses the Huvalu forest and was chosen because
"Of all the sites considered, only the Huvalu forest is considered large enough to maintain ecological viability and complex enough to encompass a wide range of interactions prevailing in the country. Conservation of this one site will protect three quarters of Niuea’s remaining high stature rainforest, a forest under potential threat form logging and agricultural activities. A fully representative sample of Niuean biodiversity will be protected including significant populations of birds, bats, coconut crabs and other wildlife"5.
The project is supported by the villages of Liku and Hakupu which own the land6. It is these customary landowners, comprising 17% of the population of Niue or 383 people, who are identified as the potential beneficiaries of the project.7
The project has been divided into three components, namely project management, income generating projects and a resource management plan8.
In order to set up a community based management structure, the management component of the project is aimed at developing the planning and management skills at the community level. The Environment Unit will oversee this aspect during the initial stages. A Conservation Area Coordinating Committee comprising representatives from government, non-government organisations, the villages and the Environment Unit is also envisaged. A system for evaluating and, monitoring the management of the project will be incorporated9.
The area will not be "closed" in the sense that activities founded upon the sustainable use of natural resources10 could, it is suggested, be developed or where already undertaken, continued. Examples noted are eco-tourism, forestry and agriculture11. Within the proposed conservation area, agriculture based on a shifting cultivation system is practiced on approximately 800 ha of land12. Taro and other root crops are grown for a year and the land is then left fallow for seven to ten years. Coconuts13, yams and bananas are produced. The forest in the conservation area is also used as a source of building materials, foods, medicines and firewood14.
Although traditional resource management practices have been successfully used in the past in the conservation area, the extent and nature of resource use has altered with the advent of modern technology and a cash economy geared towards an export market. Although custom law alone, in the form of the fono and tapu, is unlikely to be successful in this new economics driven environment, and whilst modern resource management techniques are considered necessary, the project seeks to:
"marry appropriate traditional and modern resource management techniques and to establish a framework for the sustainable use of natural resources in the conservation area"15.
A traditional tapu covers approximately 100 hectares within the proposed area16. The report states that there are at least four tapu areas, two on Hakupu land and two on Liki land, which are currently enforced17. Veve in Hakupu is tapu for spiritual reasons18. It is a cave "where the life or core of the island (tokamotu) is hidden"19. The other enforced sites are sacred bat reserves or tauga peka20. Fagafue is a village sanctioned tapu on Hakupu land and it is the largest tapu area. It has been tapu for four generations21 and covers
"...one of the surviving large areas of tropical rainforest, and consists of tall trees forming a dense cover over a fairly sparce herbaceous layer below."22
On Liku land there are at least four household sanctioned tapu areas of about one hectare each, two of which fall within the proposed conservation area. Although there appears to be some concern that the tapu is being questioned by some young members of the communities23 these are sites of "minimum human activity"24 and as such:
"No new management regimes are envisaged for these areas, other that the traditional sanctions currently being applied"25.
This is a graphic example of the enduring resilience of custom law in Niue. Indeed the last four generations of Niueans have been subject to massive social change and yet have maintained their beliefs and the laws which protect their resources.
The project also provides some interesting background on the nature of the fono and tapu generally. It states that such prohibitions may not only apply to sites and to species of animals or plants but may specifically target hunting methods, time of harvesting or particular activities within sacred areas.26 Reasons for imposing the fono or tapu include the need to conserve resources, the protection of sacred or historical sites or "to show respect for a deceased elder"27.
Enforcement of such prohibitions may be by individual landowners, households or the village council areas, for example, the tauga peka which protects bat roosting sites, are declared by households and family tapu areas may protect uga or coconut crabs. Permission to visit such sites must be obtained from the relevant landowning families.
Fishing is also regulated by the use of the fono and the tapu. For example,
"In the conservation area certain fishing areas such as Tauta (a sea track and fishing ground) are fono and spear fishing and the use of fish poisons are tapu"28.
The use of nets is similarly restricted.
The land in the conservation area is Niuean with limited exceptions. This means that it is vested in the Crown "but is held by Niueans according to traditional customs and uses"29. The survey conducted by the Environment Unit and attached to the project document found that only one household out of the seventy one interviewed did not own land and this was due to an elderly man giving his holding to his son.
The Niuean concept of land tenure is "based on an area of land having its ‘source’ in the name of one person, who lived several generations before the present adults"30. This source relies on genealogical records which are based on oral traditions and memory. With regard to succession, the report states that:
"The process by which the source moves forward over time is shown by the way younger claimants refer to a more recent ‘subsource’ who headed one of several subdivisions under the earlier source. The claimant of today justifies his or her claim to land by reference to accepted criteria of linkage to that source or sub-source. The factors used today to vindicate past linkages may not be the same as those having created the original linkage"31.
The traditional descent or megafaoa, the basic land holding unit in Niue is defined by the Land Ordinance 196932 as
"...............the family or group of persons descended from a common ancestor, including any person who has been legally adopted into the family, who at any given time are recognised as entitled by Niuean custom to any share of interest in the land, and excludes a former member of the family legally adopted into some other family. Where Niuean land is owned by a single person exclusively, that person is the mangafaoa of the land."
These rights are complicated as membership of a descent group changes with events such as birth, death, adoption and migration. The report also states that:
"Rights of group members are not equal but change according to age, sex, personal capacities and physical need for land. Each person can exercise customary land rights in a number of magafaoa: those of the person’s father, mother and spouse (usufruct rights only)"33.
In the villages of Liku and Hakupu most land is megafaoa owned. None of the holdings in the conservation area are looked after by a leveki, a selected trustee or guardian of family lands34.
This portrait of land ownership is important because it illustrates an attempt to incorporate custom law into legislation, a process which changes it into State sanctioned or formal law. It also illustrates the importance of land tenure in accessing environmental resources and in regulating resource use generally.
The importance of custom law in Niue is not always apparent on the face of much of its legislation dealing with the environment35. For example, the Water Resources Act 1996, which regulates water use in an island country largely dependent of subterranean supplies36, conceives of a western style bureaucracy with a "Health Officer" "Public Authority", "Crown Land" and "Manager"37. Custom is present by implication, perhaps reflected in the role allocated to the "Village Council" or in the definition of "environment" which
"includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings, and shall include biological, social and aesthetic factors of those surroundings"38.
The Niue Village Councils Ordinance 1967 gives a number of powers, functions and duties to Village Councils "subject to any other law in force in Niue39." These functions40 largely relate to environmental issues including the "undertaking, provision, construction, maintenance, management, and regulation" of markets, village planning, water supply, animals, fish ponds, transport, and the "construction and maintenance of sea approaches41."Of particular relevance are clauses three and sixteen of the Ordinance Schedule. Clause three deals with "public parks, gardens, recreation areas, scenic parks, reserves and land vested in the Council or placed under its control either permanently or temporarily...." Pursuant to Clause 13 the Village Council may also take responsibility for,
"Agricultural, pastoral, horticultural and forestry industries and the economic use of Niuean customary land, including requiring the owners of land to cultivate it to such extent and with such crops as will ensure a sufficient supply of food for their support and the support of those dependent upon them."
Unfortunately these wide powers do not appear to be availed of in practice. The potential remains however for Village Councils to be very influential in issues of environmental protection.
Another example of formal recognition of custom law is found in the Niue Act 1966 (NZ). This Act specifically provides that judicial notice is to be taken of "Niuean Custom so far as it has the force of law"42. At a policy level, the Niue Concerted Action Plan 1987 (NCAP) has as one of its aims the establishment of
"....... a legislative base for a system of reserves, consistent with customary land ownership, for the protection of landscape, fauna and flora"43.
This approach does not attempt to define custom law but takes a minimalist approach consistent with the reality of life in, for example, the project area, where,
"Unwritten traditional law is used in the day-to-day regulation of local affairs"44.
Niueans have moved in other specific ways to strengthen existing customary control mechanisms within their legislative framework. For example, the fono, which involves an appeal to the supernatural to protect resources, is recognised in the Domestic Fishing Act 1995. Pursuant to this legislation, Cabinet has the power to declare a fono for fish by public notice with the concurrence of the Village Council45. Section 8 provides that,
"Except as otherwise provided in this section or permitted under any marine reserve or fono for fishing, no person shall, so long as any marine reserve or fono for fishing is in force,
(a) Enter the area over which the marine reserve or fono for fishing has been declared, for the purpose of fishing;
(b) Take any inorganic substance, living material, or matter from within any such area:46
The penalties for breach of the section are a fine not exceeding $500 or "imprisonment for a term not exceeding six months."47
Custom law in this context, then, is supported by a society which is "cohesive and highly structured with the family unit remaining the binding force"48. At the community level, Village Councils in Hakupu and Liku administer development projects and pass local by-laws. Women’s committees in these villages are also active and are responsible for village health49.
As one would expect, there are areas where custom is not influential. Most houses have flush toilets, for example, and the disposal of waste is problematic having regard to the need to protect Niue’s groundwater lens50. The use of agricultural chemicals51 also needs close monitoring for this reason. These environmental impacts which are the result of modernisation an be regulated either by regulation or by changes to custom law.
Environmental lawyers have long acknowledged the need to work in context, to marry law and policy. They recognise that "the law" or legislation is only effective if it is administered efficiently and that sustainable development must have strong community support to be achievable. It is this desire to support and encourage ideas such as sustainable development, intergenerational equity and biological diversity which force environmentalists to acknowledge the "big picture". Custom law is part of that picture.
Undoubtedly traditional use of land in Niue, supported by custom law, was largely sustainable before facing the challenges of outside pressures which view the environment in terms of "economic resources". Niueans relied on their natural environment for survival for perhaps 1,300 years before the arrival of missionaries in the middle of the nineteenth century. It is claimed that the relationship between Niueans and the environment changed with an increasing dependence on foreign imports52. This change and the associated desire for cash has led to a significant risk to sustainability as the non-traditional practices of logging, cash cropping and commercial fishing which threaten to be non-sustainable, are embarked upon. This is not to idealise the position of pre-contact days but to recognise that the impact of social, technological and legal change has been dramatic in recent history in the Pacific region53.
Similar situations have occurred elsewhere. In Vanuatu, for example, the direct control of land for economic gain was not an issue prior to European contact as land was required for subsistence and social needs54 and transfer was usually related to extensive alienation rather than to commercial aspirations55. A cogent description of this process is given by Peter Taurakoto56 who writes,
"Now that the people realize that they can sell coral, sand, shells and seafood for cash, they are creating a new custom over the reefs, and tend to keep the reefs to themselves. Now fishermen can fish for market rather than consumption, using Coleman lamps rather than coconut leaf torches that burn out in less than half an hour, and so lobsters have to be legally protected during the period of laying eggs. Sometimes schools and other buildings in the interior of the islands cannot be built because the owners of the sand and coral on the beach or reefs demand a very high price for it."57
Niue has been receptive to a legal system and ideology imported from New Zealand despite Pacific island communities generally being uncomfortable with a centralised administration58. The introduction of New Zealand law has radically altered custom law by modifying those aspects of it which have survived this reception, such as land law59 and legislating in areas concerning economic and development issues60. As in other post-colonial jurisdictions, and despite measures such as the entrenching of "Niuean land" in legislation61, there is evidence of an increasing break up in the customary ties of family and lineage with a resultant lessening of an individuals sense of obligation towards this system. The nature of Niuean society has meant, however, that custom law maintains a relevance which cannot be discounted when discussing environmental or other law - it is an implicit or explicit component of the Niuean legal system and of Niuean identity. This relevance is remarkable given the extent to which Niue, with a small population, relies on overseas aid and New Zealand remittances.
Custom law did not develop to deal with nationalism, private ownership, international market forces or, for that matter, conservation areas as that concept is understood in the West. It has, of course, been changed by such forces and pressures. Professor Crocombe62 notes that
"...change was inevitable, even where the administrative machinery was set up specifically to perpetuate custom, for the very absence of such a formalised framework was one of its salient features. One of the most important elements of the pre-contact systems was not the principles themselves, but the fact that they were not written, that decisions were not permanently recorded, and that they were made in the context of other social and political circumstances. Once customary principles are codified, their effect is likely to be different. If the decision-making body is formalized and its composition determined by principles, and precedent becomes the rule, decisions are likely to differ from what they would be if determined by social and political forces. When genealogies, transactions and other facts are recorded, they are likely to change the operation of the system."63
Professor Crocombe’s description of this process should not lead us to conclude that lawyers can ignore custom law and its contribution to any given system. As demonstrated by the Huvalu Forest Conservation Project, custom law remains an observable, enforceable and significant component within Niuean society. It is an integral part of community life and support of that community is essential if such projects are to be successful. As demonstrated in this paper, custom law operates independently from the formal legal system, for example in the case of the tapu in the project area, or continues to operate pursuant to legislation which takes a minimalist approach such as the Niue Village Councils Ordinance. Where custom law is directly legislated as in the case of the fono in the Domestic Fishing Act it becomes formal law derived from custom but no longer within the customary system. The complexities of this pluralist legal regime are recognised by environmental lawyers who are concerned with the implementation of policies aimed at sustainable development in Niue and elsewhere in the Pacific.
Amankwah, HA., "Post-Mabo: The Prospect of the Reconciliation of a Regime of Customary (Indigenous) Law in Australia, (1994) 18 University of Queensland Law Journal, 15-37
Bottomley S., Gunningham N. & Parker S., Law in Context, The Federation Press, 1994
Crocombe R., (Ed) Land Tenure in the Pacific,University of the South Pacific, 1987
Davies M., Asking the Law Question, The Law Book Company Limited, 1994
Environment Unit, Community Affairs Department, Government of Niue, Huvalu Forest Conservation Area Project - Niue, Government of Niue, 1995
Peteru, C., Environmental Legislation Review - Niue, Report for the South Pacific Regional Environment Programme and the Government of Niue, 1993
Taurakoto P., "Customary Rights to Reefs and Landings", Larmour P (ed), Land Tenure in Vanuatu, University of the South Pacific, 1984
Van Trease H., The Politics of Land in Vanuatu, Institute of Pacific Studies of the University of the South Pacific, 1987
Woodman GR., "Studying the Laws: Respecting Customary Laws in the Curriculum" (1987) 15 Melanesian Law Journal, University of Papua New Guinea, 118-135
*Lecturer in Law at the University of the South Pacific, Port Vila Campus.
I wish to acknowledge the invaluable assistance of Clark Peteru who, as an environmentalist, has visited Niue and who spent several hours discussing aspects of this paper with me. Dr Kate Duggan , the Land Use Planning Advisor in Vanuatu also provided support and encouragement and for the benefit of her ideas I am most grateful. Thanks also go to Professors Robert Hughes and Mark Findlay, Felicity Stewart and my colleagues and friends who generously passed articles and thoughts in my direction.
1See for example M. Pulea, Customary Law Relating to the Environment, SPREP Topic Review 21 SPREP, Noumea, 1985. Pulea argues that custom law incorporates customary practices, patterns of behaviour and social norms which invoke coercive sanctions.
2Environment Unit, Community Affairs Department, Niue, Huvalu Forest Conservation Area Project NIUE, 1995,47
4Niue is 259 square kilometres in area.
5Environment Unit, Community Affairs Department, Niue, op.cit, 2
7Ibid. 10, 11and a summary of results in Appendix 3.
21Clark Peteru, Environmental Legislation Review-Niue, Report for the South Pacific Regional Environment Programme and the government of Niue, 1993. 29
23Environment Unit, Community Affairs Department, Niue, op. cit., 48. Reasons for this may be modern trends towards individualism and the influence of economic rationalism in the region.
29Ibid. 29. This inherent contradiction arises because of the adoption of Western concepts of sovereignty which are in complete juxtaposition to custom law.
33Environment Unit, Community Affairs Department, Niue, op. cit., 29
35For a list of environmental legislation in Niue see Appendix 5 of the Huvalu Forest Conservation Area Project, n7 above.
40See the Schedule to the Niue Village Councils Ordinance 1967.
43Clark Peteru, Environmental Legislation Review - Niue, Report for the South Pacific Regional Environment Programme and the Government of Niue, 1993, 5
44Peteru, op.cit., 27
52Environment Unit, Community Affairs Department Government of Niue, Huvalu Forest Conservation Area Project Niue, Government of Niue, 1995,31
53For a further discussion of this issue see Peter Fitzpatrick, The Knowledge and Politics of Land Law, (1983) 11 Melanesian Law Journal.
54Howard Van Trease, The Politics of Land in Vanuatu, Institute of Pacific Studies of the University the South Pacific, 1987, 8.
56Peter Taurakoto, "Customary Rights to Reefs and Landings", in Peter Larmour (ed.) Land Tenure in Vanuatu, University of the South Pacific, 1984
58Jeremy Carew-Reid, "Conservation and Protected Areas on South-Pacific Islands: The Importance Tradition" (1990)17 Environmental Conservation 1, 29-38 at 33
59Land Ordinance 1969
60For example, Development Fund Act 1983, Niue Building Permits Ordinance 1959, Niue Public Health Ordinance, 1965, Territorial Sea and Exclusive Economic Zone Act 1978 and Tourist Board Ordinance, 1970.
61Land Ordinance 1969.
62Ron Crocombe (Ed.), Land Tenure in the Pacific, University of the South Pacific, 1987