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Indigenous land grievances, customary land disputes & restorative justice

Jowitt, Anita L. (2004) Indigenous land grievances, customary land disputes & restorative justice. Journal of South Pacific Law, 8 (2). N/A-N/A. ISSN 1684-5307

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In a country such as Vanuatu, where land is owned by the indigenous custom owners and the Constitution requires that the government arranges for appropriate customary institutions or procedures to resolve disputes, customary law and State law are necessarily brought together. The State is expected to find “custom-appropriate” systems to resolve disputes that are coming to the State system because, in the dispute at hand, custom has failed to resolve the dispute, or be accepted as being determinative. Both custom and State law are changed by this meeting, and policy makers must try to find a path that allows custom and State law to travel together. This in itself is interesting, but the links to restorative justice are not immediately clear, unless one adopts a simplistic custom = harmony equation. However, there is a link - the potentially transformative meeting of both the State and custom law systems provides scope for the development of restorative justice – a new way forward out off the current confusion of clashing systems of law. There are a lot of issues that could be talked about. In this paper I am going to consider three areas. First I will talk about the relationship between indigenous land grievances and customary land disputes. The conference theme that my paper was grounded in is indigenous land grievances. Customary land disputes in Vanuatu are very different to the land grievances that are found in New Zealand, Australia or North America. It is worth spending some time on the distinctions between land grievances and land disputes so that we can appreciate the dynamics of each, and maybe understand more clearly the degree to which discourses in one setting can be used by the other. Further, debates about land are potentially explosive – over the past few years coups in Fiji, civil war in Solomon Islands and disruptions to mining activities in Papua New Guinea have all involved issues of land ownership and land management. Land issues and the legitimacy of the State are clearly linked and examining the dynamics of such issues help make links to wider civil conflict issues. From there I will move on to examine the dynamics of customary land disputes in Vanuatu. Here I will look at the Constitutional framework of land law, then consider some case studies of land disputes that have come up in the USP law centre, a free legal advice clinic operated by students, in which I spend time as a supervisor. Finally I will try to pull together some threads and consider the place of restorative justice in customary land disputes and indigenous land grievances, or what elements might be needed for there to be restorative solutions.

Item Type: Journal Article
Subjects: J Political Science > J General legislative and executive papers
K Law > K Law (General)
Divisions: Faculty of Arts, Law and Education (FALE) > School of Law
Depositing User: Repo Editor
Date Deposited: 30 Mar 2015 05:08
Last Modified: 30 Mar 2015 05:08

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