Debate on the Bill to Amend the iTaukei Land Trust Act

SODELPA is now demanding that the FijiFirst Government withdraw Bill No.17 of 2021 which seeks to amend the iTaukei Land Trust Act 1940.

SODELPA Leader, Viliame Gavoka says the proposed law is being tabled as a consequential bill and the Government wants it to be debated in less than an hour of parliamentary time.

According to the bill, Section 12 of the iTaukei Land Trust Act states that it is unlawful for a lessee under the Act to alienate or deal with the land comprised in the lease, whether by sale, transfer or sublease or in any other manner without the consent of the iTaukei Land Trust Board.

The iTaukei Land Trust (Budget Amendment) Bill 2021 seeks to amend the Act to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law.

If passed by Parliament, the amending legislation will come into force on 1st August 2021.

The Act comes under the responsibility of the Minister responsible for iTaukei Affairs.

Gavoka says Section 12 covers a very critical area of the Act governing iTaukei land, in that it requires the consent of the iTaukei Land Trust Board for any dealings related to the lease given to tenants.

The SODELPA Leader says most court cases involve Section 12 and the courts have always ruled in favour of the iTaukei Land Trust Board whenever any dealings contravene Section 12 and emphasize that anything done without the prior consent of TLTB is a nullity and void of any effect and impact to the landowner’s paramount interest.

Gavoka says what the Government is doing is introducing a new subsection (1A) which will amend the law consequentially not requiring the consent of the TLTB for any mortgage, charge, pledge, caveat or for any such lease to be dealt with by any court of law or under the process of any court of law.

Gavoka says it is known that most dealings in relation to iTaukei land will be encompassed under these heads. He says this is a significant reduction in the power of the TLTB; an erosion of the guardianship role of TLTB and in effect, significantly reduces the power of landowners to have their rights, interests and wishes protected by the Board once their land has been leased out by TLTB.

He says basically, once the tenants take the lease, then, so long as the tenant is not in breach of any law, the tenant can effectively do most, if not all, the things that a commercial lessee (and a non-commercial lessee) wishes without having to consider, through TLTB’s discretion, any rights, interests, or wishes of the landowners.

Gavoka believes the original intent of the Act, a tripartite forum of lessee, landowner, and the guardian TLTB of mutuality, respect and transparency is now being watered down by the Government under the guise of present predicaments we all face as a nation.

He says this bill should not be tagged to the budget as a consequential bill under the infamous Standing Order 51, and at a time we are barely coping with COVID-19.

Gavoka says in no uncertain term, the Prime Minister as Chairman of the TLTB, must personally see to the withdrawal of the bill in his role as the guardian of the landowner’s interest.

We have sent questions to the Prime Minister and the Attorney General on the bill and SODELPA’s call to remove it.

SODELPA Leader, Viliame Gavoka says their call for the Prime Minister to withdraw the bill to amend the iTaukei Land Trust Act has nothing to do with race or the Attorney General but about proper consultation and iTaukei land rights.

While responding to the Prime Minister’s comments, Gavoka says they are gathering signatures to table a petition on Monday, and they want the Prime Minister to remove the bill as it cannot be a consequential bill.

Gavoka says he cannot be termed an urban elite as he is from Nadroga, and lives in Sila, in the tikina of Cuvu.

He also says this is not a racist move or attack.

The National Federation Party says they are deeply concerned that Government is trying to rush changes to the iTaukei Land Trust Act without consultation and that it is arrogant and disrespectful of the Government to rush through changes to indigenous land laws in this way.

Party Leader Professor Biman Prasad says they oppose Bill No 17 and join the calls to have it withdrawn immediately.

Professor Prasad says the Government is saying that it wants to improve business efficiency by eliminating delays in getting TLTB consent for mortgages adding that Government has not consulted TLTB on these changes and it has not consulted anybody.

He further says these changes go much wider than mortgages and landowners have the right to ask why this is happening.

Professor Prasad also says ever since independence, all governments and all mainstream political parties have respected the primacy of land rights for Fiji’s indigenous people.

He adds NFP began in the 1960s as a party representing tenant farmers, but they have always respected the rights of indigenous people to their land.

The NFP Leader says they have always recognized that matters concerning iTaukei land are matters for the iTaukei and they agree that any changes to laws affecting iTaukei land should be widely consulted on and decided on by the iTaukei.

He also says every previous constitution of Fiji had special rules about changing laws relating to iTaukei land.

Professor Prasad claims Prime Minister Voreqe Bainimarama and Attorney General Aiyaz Sayed-Khaiyum imposed the 2013 constitution on Fiji and for the first time took away those special rules.

He asks why do they now want to rush through changes without proper consultation.

Professor Prasad says if the problem is that some TLTB consents are slow, why not fix that problem at TLTB.

He says after all, the Prime Minister is the Chairman of TLTB adding that why is it necessary to change the law in such a draconian and dictatorial way.

SODELPA Whip, Lynda Tabuya says the focus should be on getting through the COVID-19 crisis, not name-calling, and definitely not trying to push through the bill to amend the iTaukei Land Trust Act without full consultation with the iTaukei landowners and the iTaukei Land Trust Board.

While responding to the Prime Minister’s comments, Tabuya says they have never used the word ‘Kai Idia’ while raising concerns about the bill.

Tabuya says this issue is about the rights of the landowners, and there is nothing racist about it.

According to the bill, Section 12 of the iTaukei Land Trust Act states that it is unlawful for a lessee under the Act to alienate or deal with the land comprised in the lease, whether by sale, transfer or sublease or in any other manner without the consent of the iTaukei Land Trust Board.

The iTaukei Land Trust (Budget Amendment) Bill 2021 seeks to amend the Act to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law.

Tabuya says the consent of the iTaukei Land Trust Board on behalf the iTaukei landowners should not be removed for these issues

If passed by Parliament next week, the amending legislation will come into force on 1st August 2021. The Act comes under the responsibility of the Minister responsible for iTaukei Affairs.

Prime Minister, Voreqe Bainimarama says politicians like SODELPA Leader Viliame Gavoka, MP Lynda Tabuya, and other bush lawyers and bunch of urban elite are causing fear amongst the iTaukei about the bill to amend the iTaukei Land Trust Act.

Bainimarama says the amendment to the iTaukei Land Trust Act is administrative in nature and does away with needless bureaucracy that too often holds up development on leased iTaukei land, like connecting water and electricity.

He asks where were these so called protectors of iTaukei rights when iTaukei land was converted to freehold land during the Rabuka and the late Qarase led governments.

Bainimarama says the fear of the ‘Kaidia’ is being used by this urban elite, and the Attorney General, Aiyaz Sayed-Khaiyum is being targeted as someone who is trying to cheat the iTaukei of their land and culture.

The Prime Minister says under the 2013 Fijian Constitution, iTaukei land will always remain iTaukei land and they have many other protections and benefits under the same constitution.

Bainimarama says there is so much lies about the AG and so much rubbish is being thrown at him.

According to the bill, Section 12 of the iTaukei Land Trust Act states that it is unlawful for a lessee under the Act to alienate or deal with the land comprised in the lease, whether by sale, transfer or sublease or in any other manner without the consent of the iTaukei Land Trust Board.

The iTaukei Land Trust (Budget Amendment) Bill 2021 seeks to amend the Act to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law.

If passed by Parliament next week, the amending legislation will come into force on 1st August 2021.

The Act comes under the responsibility of the Minister responsible for iTaukei Affairs.

Attorney General, Aiyaz Sayed-Khaiyum says the Bill to amend the iTaukei Land Trust Act proposes that the consent of TLTB is no longer required for any mortgage, charge, pledge, caveat or for any court proceedings.

In a statement released on his facebook page, Sayed-Khaiyum says the iTaukei Land Trust (Budget Amendment) Bill 2021 proposes that except as may be otherwise provided by regulations made, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his or her lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained.

He says the granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void, provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29th September 1948 to mortgage such lease.

Sayed-Khaiyum says it also provides that for any other dealing which requires the consent of TLTB, consent can be refused by TLTB where there is breach of the lease condition or where the application is not in accordance with the law.

He says it is important to highlight that the removal of consent under the Bill only applies to leases which are properly issued by TLTB and which are registered with the Registrar of Titles. Sayed-Khaiyum says the registered proper leases are only issued by TLTB after necessary consents of the iTaukei landowning units are obtained and after terms and conditions such as rent and premium are prescribed by TLTB in a proper lease agreement.

He says the Bill does not apply to vakavanua and other ad hoc arrangements for occupation, which are not properly registered under the law.

The Attorney General says as announced in the 2021-2022 Annual Budget address, consents are no longer required for connecting water and electricity on any State and iTaukei leased land. He reiterates this only applies to registered leases.

Sayed-Khaiyum says an identical amendment has been proposed for all State Lands under the State Lands (Budget Amendment) Bill 2021, under which the consent of the Director of Lands will no longer be required for any mortgage, charge, pledge, caveat or for any court proceedings.

He says in her social media video, SODELPA MP, Lynda Tabuya has maliciously alleged that the Bill will result in landowners losing their rent payments, as well as losing control over their lands.

Sayed-Khaiyum says under section 4 of the Act, the control of all iTaukei land (unless the land owning decides to lease their land through the Land Use Act administered by the Lands Department) is vested with the TLTB and all such land is administered by TLTB for the benefit of the iTaukei landowners.

He says before any iTaukei land is leased by TLTB, the express consent of the iTaukei landowners is obtained.

Sayed-Khaiyum says following the consent of the iTaukei landowners, TLTB assesses the land value, the use of the land, the amount of premium and land rental, lease terms and conditions, including tenure.

He says once land is leased, the amount of premium and land rent to be paid is fixed and forms part of the lease, which is registered as a legally enforceable instrument with the Registrar of Titles. He further says any dealing with the lease does not in any way affect the land rent or premium which are to be paid by the lessees to TLTB for the benefit of the iTaukei landowners.

Sayed-Khaiyum says Tabuya’s statement that landowners would no longer enjoy the amount of money they receive if mortgages over leased iTaukei land no longer require the consent of TLTB is grossly misconstrued and is factually and legally incorrect.

He says it shows her ignorance of basic principles of land and property law.

He says a mortgage over any iTaukei lease will not and does not change the amount of lease monies which are currently received by TLTB on behalf of the landowning units.

The Attorney General says they will continue to receive lease monies in accordance with the lease, regardless of any mortgage on the lease.

He says it is totally absurd that Tabuya suggests that landowners will have no control over what a lessee can do with the landowners land if they no longer need consent for a mortgage.

Sayed-Khaiyum says iTaukei leases have been mortgaged well before this amendment was proposed, and none of these mortgages have taken away the control of TLTB over such leases.

He says even with the removal of the need for a consent to mortgage, lease monies will continue to be paid to the landowners and TLTB will continue to monitor and enforce the terms of the leases on all lessees.

The Attorney General says a mortgage, charge, pledge, caveat, nor connection to water and electricity does not in any way affect the terms and conditions of a lease approved by TLTB nor does it in any shape or form undermine the rights of the landowning units. He says in actual fact, TLTB still has full powers to forfeit any iTaukei lease if the lessee is found in breach of any terms and conditions of the lease whether or not there is a mortgage registered on that lease.

Sayed-Khaiyum says Section 28 of the Constitution clearly provides that ownership of all iTaukei land shall remain with the customary land owners of that land and iTaukei land shall not be permanently alienated except to the State for public purposes.

However, he says there is now a new provision in the Constitution that states if that if iTaukei land is used for public purpose and even though the state will pay compensation, the state must return that land to the landowners if it is no longer required for the original public purpose it was alienated for.

He also says the bureaucratic delays at TLTB and the legal costs incurred in obtaining consent have prohibited better utilization of and investment into iTaukei lands.

Sayed-Khaiyum says by removing the requirement for consent for mortgages and caveats, the Bill has the effect to making iTaukei leases much more marketable and attractive to take on lease, thereby conferring greater returns and benefit to iTaukei landowners.

He also says it is important to highlight that the unprecedented protection guaranteed in the Constitution of the rights of ownership of all iTaukei lands has ensured that iTaukei lands cannot be converted into freehold and permanently alienated to private persons, as was allowed by the SVT government in 1990s for the iTaukei lands in Denarau, and by the SDL Government in 2005 for iTaukei lands in Momi.

Sayed-Khaiyum says those such as Rabuka have justified the permanent alienation of iTaukei lands in Denarau and Momi as a means to 'facilitate development'.

He says in other words what he is saying is that under the pretext of facilitating development he should be allowed to permanently alienate as much iTaukei land as possible.

Sayed-Khaiyum says this is completely contrary to the philosophy that communally held land has an intrinsic and intergenerational value that must be protected. He says the philosophy of the Bainimarama and subsequently FijiFirst governments has been that economic development can be faciliated, iTaukei land made more attractive for investment and made more valuable and all without permanently alienating the land.

He also says those who argue that there are currently no issues with TLTB’s operations under section 12, cannot possibly be true as numerous complaints are received from lessees and financial institutions on the delays they experience over their mortgage applications.

Sayed-Khaiyum says unfortunately, these delays are for weeks and months, thereby discouraging investment into iTaukei leases. He also says the long term strategy should be about how we can empower the landowners (who own 91% of all land in Fiji), make them wealthier, make their land more valuable and marketable and contribute to growing the Fijian economy.

The Attorney General says we see that SODELPA is again on a falsehood crusade.

He says despite the law being so clear that only administrative matters are being amended, without ownership and rights of landowners being affected, SODELPA is blatantly misreading the amendment, spreading false information, conjuring ill feelings and creating community discord.

Sayed-Khaiyum says contrary to the malicious, factually and legally flawed allegations by Tabuya, Gavoka and others, the Bill fully protects the proprietary interest and benefit of iTaukei landowners and does not pose any risk to the ownership of iTaukei lands as enshrined in the Fijian Constitution.

He says it is strongly recommended all citizens strongly support the Bill and vehemently condemn the factually and legally flawed attempts by the Opposition and others to undermine the Bill.

Former Prime Minister Sitiveni Rabuka says Prime Minister Voreqe Bainimarama continues to beat a broken lali regarding the land swap on Momi and Denarau.

Rabuka says Bainimarama plainly does not understand that the concept of a ‘land swap’ is a mechanism enacted in law, to enable and facilitate development.

He says Bainimarama forgets to mention that the swap is made only after the landowners consent has been obtained through the iTaukei Land Trust Board.

Rabuka adds the Prime Minister should listen to his Attorney-General Aiyaz Sayed-Khaiyum who finally admitted in Parliament on May 15th 2018, that the Momi land-swap was legally correct.

He said Ratu Naiqama Lalabalavu quite correctly said that he did it within the law and that the 1990 Constitution and 1997 Constitution allowed them to convert iTaukei land to freehold land.

Rabuka adds with that admission the Attorney General admitted that the demonising that he and the Prime Minister had undertaken against SVT and SDL was totally false.

He says the misinformation by the Prime Minister and Attorney General are a clear indication that FijiFirst lost six seats in the 2018 elections because voters can no longer have faith or trust in the broken lali they continue to beat.

Bainimarama talked about the land swap on Momi and Denarau this week in a statement on the Bill to amend the iTaukei Land Trust Act.

He said that iTaukei land was converted to freehold land during the Rabuka and the late Qarase led governments.

The Prime Minister says under the 2013 Fijian Constitution, iTaukei land will always remain iTaukei land and they have many other protections and benefits under the same constitution.

SODELPA MP Aseri Radrodro says both Government and the iTaukei Land Trust Board have failed in their fiduciary duties to engage and involve the landowners in decision making, and the admission by the CEO of TLTB, Tevita Kuruvakadua that they were involved in consultations with Government on Bill 17 makes matters worse.

While opposing the 2021/2022 National Budget, Radrodro questions what is so difficult about consulting the landowners on what belongs to them.

He says the controversial Bill No 17 which is a Budget Consequential Bill will need to be passed so that the objects of the Budget Bill can be put into effect.

Radrodro says Government so desperately needs to finance its plans set out in the budget and so the answer lies in the fact that this consequential Bill 17 ties in with revenue collection for Government.

He says the recent budget announcement by the Minister for Economy is a desperate attempt to try and win back the hearts of the people but it is evident, that the FijiFirst Government has lost the plot and it is because they choose to listen to one advice only, that of the Minister for Economy.

Radrodro says sadly, all other Ministers and Assistant Ministers on the other side of the House, will know what he is saying.

Radrodro says this is a proposed Budget with an estimated revenue of $2.08 billion, expenditure of $3.7 billion and a net deficit of $1.6 billion and despite all that, Government is faced with the stark reality that Fiji is in a cash strap situation.

He says as a result of a drop in tax revenue collection and no tourism, no major bonafide investments, massive and widespread unemployment, low sugar production, an extremely high daily statistics of positive COVID-19 cases, it has been forced to opt for a conservative budget.

Radrodro says the fact that it will need to be reviewed in 6 months time is worse for everyone especially the business community of this country and its workers because it means, for the next 6 months everyone will be holding their breaths just hoping for a miracle to happen.

He says everyone he meets now tells him, let’s just all pray that in the next 6 months, that nothing will worsen and we will not have pay cuts for instance.

Radrodro says Government is expecting a 43.3% decrease in tax revenue collection which is significant due to the COVID-19 pandemic.

He says there does not seem to be any real development plan by Government on how to grow or recover from post COVID-19, let alone how to survive COVID-19.

SODELPA MP, Adi Litia Qionibaravi says she pleads with the Prime Minister Voreqe Bainimarama to withdraw the Bill to amend the iTaukei Land Trust Act.

While opposing the 2021/2022 National Budget, Adi Litia says consultation on the Bill needs to take place.

Meanwhile Adi Litia says Fiji’s economy must now prioritize a move to the agriculture and infrastructure sectors.

She says the agriculture sector includes substantial subsistence sectors mainly dominated by indigenous people who earn their livelihoods from various cash crops such as planting dalo, cassava, yaqona, pineapples and also fishing.

Adi Litia also says major disruptions to trade flows as well as a downturn in the economy has put an enormous strain on public finances.

She says they all accept that Fiji is in a precarious situation.

Adi Litia adds that Government also has a duty of care to its employees and this extends to implementing infection control, education, sufficient testing to ensure frontliners are not positive of COVID-19 and the provision of adequate personal protective equipment.

Prime Minister, Voreqe Bainimarama has stressed that the Bill to amend the iTaukei Land Trust Act will never steal or change the decision making of the iTaukei landowners, and the Opposition members taken in for questioning by Police should find out what happened in Lautoka with the Taukei Movement last Saturday.

While speaking on Bill No.17, Bainimarama says we have to speak the truth about the Bill as there is nothing wrong with it.

He says he was also worried because it looked like SODELPA Leader, Viliame Gavoka was threatening the FijiFirst Government while speaking in parliament today.

Bainimarama says it has never been the policy of the iTaukei Land Trust Board to alert the landowners when the lessee wants to change who they bank with, when they want access to power and water or any other developments.

The Prime Minister says they are not taking away the rights of the iTaukei landowners.

He says it is a lie to claim that the landowners have a role in the process as it is an administrative matter.

Bainimarama says if a lessee steps out of line, they will be held accountable.

He stresses that TLTB will still evict a lessee who does not pay the lease monies or breach the fundamental terms and conditions and TLTB will also manage the leasing of the land itself after the landowner has agreed to lease the land.

The Prime Minister says that is the case today and tomorrow after the Bill becomes a law.

He says they are just reforming a broken time wasting and piece meal process in favour of the process that empowers the TLTB to focus on improving the value of iTaukei land and making a more strategic approach to ensure long term prosperity for iTaukei landowners.

Bainimarama says he supports what MP, Mosese Bulitavu has said, not because he is a member of SODELPA but because he supports the fact that he is a young man with land and he wants to do development for his people and this is a Bill that will help him.

According to the bill, Section 12 of the iTaukei Land Trust Act states that it is unlawful for a lessee under the Act to alienate or deal with the land comprised in the lease, whether by sale, transfer or sublease or in any other manner without the consent of the iTaukei Land Trust Board.

The iTaukei Land Trust (Budget Amendment) Bill 2021 seeks to amend the Act to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease under the Act or for any such lease to be dealt with by any court of law or under the process of any court of law.

The Bill has been passed and the amending legislation will come into force from Sunday.

The Act comes under the responsibility of the Minister responsible for iTaukei Affairs.