Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Fiji (Ratification: 1998)

1. The Committee notes the brief further indications provided by the Government in its report in reply to the previous request for additional information.

2. Articles 13-19 of the Convention. Land rights. The Committee has received two long communications from the Fiji Commercial Services Union (FCSU) under article 23 of the ILO Constitution which were transmitted to the Government in January and September 2004 respectively. The FCSU indicated that the first of them was supported by the Fiji Mineworkers’ Union and the Fiji Peacekeepers’ Association. The Government has provided no comments on these communications.

3. The FCSU has provided detailed information on the land rights of indigenous Fijians, which have complex historical roots. The FCSU’s description of the legal situation coincides with the information furnished by the Government, though there may be disagreement on the conclusions to be drawn. It may be summarized by saying that all "native lands" are held in common and not through individual ownership, and are held in trusteeship. The right to manage these lands has been entrusted since 1940 to the Native Lands Trust Board (NLTB), with any disputes to be resolved by the Native Lands Commission. The native lands are said to be comprised of many small parcels, but - as the Government also has indicated - 83 per cent of the land in the country is made up of these native lands that are managed together and form the majority of the land in the country.

4. In this regard, the Committee recalls the statement in the Government’s first report that "in spite of their numbers and the fact that they own 83 per cent of the land, indigenous people still feel alienated in the country of their birth", and that the "recent political crisis is the result of nationalistic elements of the indigenous population to assert their control over the country".

5. According to the FCSU, the lands are leased to others, mostly to the ethnic Indians in the country, and 20 per cent of the revenues go to the Native Lands Trust Board and 30 per cent are channelled to the chiefs of tribes, who together form the Great Council of Chiefs. Only 50 per cent are distributed to the grassroots members, resulting in uneven income distribution, especially as the rents charged for these lands are said to be extremely low compared with the real value of the land. Increasing urbanization in recent years has led to the estrangement of many "native" Fijians from their rural roots, and the civil unrest of 2000 is attributed to dissatisfaction with the chiefs’ continued domination of land rights and revenues. The accompanying ethnic tensions are ascribed in part to the perceived benefit the Indian population of the country has derived from leasing the native lands at unfairly low prices.

6. In this regard, the Committee notes the statement in the Government’s report in reply to its previous request for information that "the formation of the NLTB meant that through the influence and persuasive power of traditional authority, the indigenous Fijians agreed to give up direct control of their land … The NLTB would ensure that the indigenous Fijians had enough land for themselves and that the surplus was available to benefit the national economy".

7. The FCSU states that there is no grievance procedure for resolving the growing number of land claims or disputes on the use to which the NLTB puts native lands, except through the Native Lands Commission, which is said to have too great a vested interest to be able to adjudicate objectively. The FCSU therefore relies on Article 14, paragraph 3, of the Convention, which states that "Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned."

8. The Committee takes note of the complex political, legal and social situation that underlies these communications. In the absence of comments from the Government directly on the FCSU communications, a number of questions remain about the situation, and the Convention’s applicability to it. The Committee therefore requests the Government to comment on the degree to which it considers it can apply the Convention to management of issues between elements of the indigenous population of the country, and to state whether it considers that the present system for resolving disputes over land rights is adequate to the needs of the population.

[The Government is requested to reply to these comments in detail in 2006.]