Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Other comments on C169

Observation

Direct Request

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Articles 1, 2, 4 and 5 of the Convention. Action to protect and develop the rights of indigenous peoples. Indigenous institutions. The Committee notes the information provided by the Government on the protection of the rights of the Rotuman people through the adoption of specific laws such as the Rotuman Act (Chapter 122) and the Rotuman Lands Act (Chapter 122). The Government indicates that the Rotuma Bill, 2015, has been tabled in Parliament. The Committee observes that the Bill establishes the Forum of the Rotuman People, the Rotuman Development Fund and the Council of Rotuma which, among its functions, shall consider matters that affect or are likely to affect Rotuman customs, traditional processes of resolving disputes within the Rotuman community and general matters relating to the roles of traditional leaders. The Committee requests the Government to provide information on the adoption of the Rotuma Bill, indicating the manner in which the consultation and participation of Rotumans have been ensured during this process. Please also provide information on the activities carried out by the institutions referred to above as they relate to the application of these Articles of the Convention.

In its previous comments, the Committee noted that the Ministry of iTaukei Affairs (MTA) is responsible for developing, implementing and monitoring policies and programmes for the good governance and well-being of the iTaukei people. It provides a link to other iTaukei institutions, including the iTaukei Affairs Board, which directly manages the administration and affairs of the 14 provincial offices. The Committee notes the information provided on the various policies and programmes adopted by the iTaukei Affairs Board. The Committee requests the Government to continue to provide information on the activities carried out by these bodies, which are relevant to the application of the Convention. Please also provide copies of any reports issued, and in particular a copy of the annual report of the Ministry of Itaukei Affairs (MTA) that is submitted to Parliament.

Articles 6 and 7. Consultation and participation. The Committee previously requested information on how indigenous peoples are consulted when consideration is being given to legislative or administrative measures which may affect them directly. The Committee notes the information provided by the Government on the manner in which the iTaukei Landowners Trust Board (TLTB) consults landowners in relation to any dealings relating to iTaukei lands, including their leasing. The Government also indicates that, “as communities could be a barrier to development”, the TLTB endorsed the elaboration of a Concept paper on free, prior and informed consent. This would allow iTaukei communities to be better informed and participate in decisions with a view to obtaining their consent prior to the commencement of development projects. The Government indicates that the Ministry is in the process of developing a framework to accommodate this process. The Committee requests the Government to supply detailed information on the progress made on the adoption of the Concept paper on free, prior and informed consent, and to provide information on the consultations held with indigenous peoples, both iTaukei and Rotumans, with a view to the preparation of the Concept Paper and its further implementation. Please provide information on the manner in which the Concept paper will help to ensure better consultation and effective participation of indigenous peoples in measures which may affect them directly. The Committee also requests the Government to provide examples of instances in which indigenous peoples have been consulted and have participated in the formulation, implementation and evaluation of national and regional development plans and programmes that may affect them directly.

Articles 8 and 9. Customary laws. With reference to its previous comments, the Committee notes the information provided by the Government on the processes used to resolve disputes relating to land ownership, fishing rights and the positions of customary chiefs. It notes in particular that the rulings of the iTaukei Lands and Fisheries Commission (TLFC) and the iTaukei Lands Appeals Tribunal (TLAT), established under the iTaukei Lands Act, are guided by the customary registers maintained by the TLFC. Furthermore, for the purposes of any inquiry, the TLFC has the power to summon and examine under oath any person who may be able to give relevant evidence. The Government adds that an informal process has now been included in dispute resolution, whereby communities involved in the dispute meet and discuss the issues or concerns. This informal process alleviates the strain on the communities and allows all options to be exhausted before the formal processes commence.

Articles 14 and 17. Land and natural resources. In its previous comments, the Committee noted that the Constitution recognized the iTaukei ownership of iTaukei lands and the Rotuman ownership of Rotuman lands. Pursuant to section 28, those lands shall not be permanently alienated, whether by sale, grant, transfer or exchange, except to the State. Section 30 further establishes that landowners are entitled to receive a fair share of the royalties resulting from the extraction of sub-surface resources pertaining to their lands. The Committee also noted that the iTaukei Lands Commission is responsible for the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners. Indigenous lands remain the property of the landowning unit unless sold back to the State and then solely for public purpose. They are however available for public use by lease agreement. The committee noted in this regard that the iTaukei Landowners Trust Board (TLTB) had been established to control and administer iTaukei lands on behalf and for their owners by way of leases and licences.

The Government indicates in its report that, for any dealings involving indigenous (iTaukei) land, whether it is reserved land or outside reserved land, the TLTB is obligated to ensure that the respective landowners are consulted and that majority consent is obtained. Furthermore, the TLTB has offices nationwide to enable easy liaison with the iTaukei regarding various issues, including the leasing of lands. In accordance with the iTaukei Land Trust Act (Chapter 134) (TLTA) and the Agricultural Landlord and Tenant Act (Chapter 270), the TLTB shall act with due diligence in the best interests of the landowners. The TLTB, as trustees of the landowners, ensures that indigenous landowners receive fair market value for their land and resources. Landowners are also consulted through provincial, tikina and village councils under the iTaukei Affairs Act. With regard to Rotuma lands, the Government indicates that the Rotuma Lands Commission is responsible for ascertaining the Rotuma lands that are the rightful property of Rotuman owners, under the different forms of Rotuman customary land tenure; lands that are not owned; and lands that are leased; as well as to decide on all disputes in this regard.

The Committee requests the Government to provide information on the disputes pending before the Rotuma Lands Commission, the iTaukei Lands and Fisheries Commission and the iTaukei Lands Appeals Tribunal concerning the determination, registration and ownership of iTaukeli and Rotuma lands. It also requests the Government to provide information on the measures taken for the involvement and participation of indigenous peoples in the policy developed by the TLTB in relation to the management of lands, including the exploitation of subsurface resources pertaining to their land, and any disputes in this regard.

Article 22. Vocational training. The Committee notes the Government’s indication that the Centre for Appropriate Training and Development (CATD) has continuously revised the training programmes to meet training needs by offering both long-term and short-term training programmes, and the provision of on-site rural training. The Committee requests the Government to provide specific information on the manner in which indigenous peoples participate in the organization and operation of the vocational training programmes developed by the CATD.

Articles 26 and 27. Education. The Committee notes the information provided by the Government on the Tertiary Scholarship and Loans Scheme, which is intended to create a pool of graduates who can meet the human resource needs of Fiji at the least possible cost to taxpayers. The Government adds that all Fijians can access scholarships for tertiary education. This ensures that no Fijians are left behind should they not be able to afford the high cost of tertiary education. The Committee requests the Government to provide information on how indigenous peoples have been involved in the implementation of the Tertiary Scholarship and Loans Scheme as well as on the manner in which the Scheme has contributed to improving the access of both men and women indigenous persons to tertiary education.