Extract: Research Project, Common Law, University of South Pacific, School of Law, Suva, Fiji by Jacob Lanyon 2013
BACKGROUND
The Banabans are Micronesian people who now live in Rabi Island Fiji (1). They were moved to the island in 1945 to make way for British exploitation of Phosphate minerals on their home island of Banaba which was then part of the Gilbert and Ellice Island Colony (2). They arrived in Rabi on 15 December 1945 aboard the ship ‘Triona’ (3). In 1945, they numbered 1003, and according to the latest Fiji census, they now number a little more than five thousand throughout Fiji (as at 2013). Today, the Banaban population in Fiji is thriving, and its people have permeated all sectors of the country. The Banabans (fondly referred to as ‘kai Rabe’ by the locals) are now an integral part of Fiji’s socio-political fabric. However, despite the apparent interaction with the other cultural groups in the country, the Banabans have largely and successfully maintained their unique culture and tradition. This can be mainly attributed to their struggle against the former Colonial powers and multinational companies that exploited their land back in Ocean Island (4). Also, strong family and kinship ties have helped their culture survive despite the many years they have left Ocean Island and moved to Fiji.
MAJOR SOURCES OF DISPUTE
1. Land ownership
Land in traditional Banaban culture relates directly to the concepts of ‘locality, blood, kinship, descent, continuity, rank, value, reward, redress, sex, space-time, nature, nurture, and the person (5). Thus, it is the single most important structure that permeates all aspects of Banaban society. It is therefore not an uncommon view held by the elders that a “landless Banaban is not a Banaban at all” (6). Thus, it was this almost sacred view of land that the Banabans took up their cause for self-determination and subsequent civil lawsuits against the British Government in the late 1970s (7).
When the Banabans moved to Rabi, they divided the island between the four villages: Uma, Tabwewa, Tabiang and Buakonikai (which was the name of the four villages back in Banaba. They also maintained the traditional method of land distribution. The one man-one acre principle was used by village leaders to distribute land equally to all Banabans living in Rabi (8).
While this method of land distribution of land was effective in the first few years, major problems began to crop up, creating problems for the community. Some are mentioned below:
1. If a block is registered under the husband’s name and he dies, what happens if his family decides to remove his wife from the premises
2. What happens if your land boundaries are claimed by your neighbour’s descendants?
3. What happens to adopted children when both parents die?
(9) These are the main issues that are related to land and are a major source of discontentment for people, as the population grows and less land is available for everyone.
2. Family Honor
In the Banaban culture, the family unit is the most important and most powerful force in the land (10). Individuals are all linked to one of the many family units on the island either maternally or paternally. These nucleus family units are then part of an extended family unit which in Banaban tradition, trace its lineage and founding to one or more Banaban elders who were leading figures back in Ocean Island (11). To have a conflict with an individual is a common happening in Rabi but to degrade his or her family in public is another matter. In many instances in the past, disputes that could have easily been resolved between two individuals have grown into a full-out conflict involving the extended family of both parties involved. The following is an illustration provided by a Banaban elder Tamoaieta Bakia (12) regarding this type of conflict:
Case Study
Two women from Uma Village were fighting over one man also from Uma. They usually confronted each other in public and their meetings usually end up in a free-for-all brawl between themselves. The drama continued and the whole village knew about it but no one interfered since it was not proper to interfere in the personal affairs of the ladies. However, their conflict suddenly exacerbated when the younger lady A threw a degrading comment about lady B’s family. It accused them of being thieves and being lazy. Lady B then went directly to her family house and told the brothers about it. The brothers then called a bowi-n-utu (family meeting) where their patriarch (the lady’s grandfather) and all his siblings’ children and grandchildren attended. They then decided that the insult was too grave to ignore, so the rorobuaka (young men) lead by the elders would march onto lady A’s family home and kill them. They marched, and the whole village was quiet as they anticipated the inevitable conflict. No one dared stop them for fear of being hurt since the family was one of the largest in Uma village. Lady A’s family was also prepared to defend themselves in a fight to the death. As the attacking party were just a few blocks away from their target, a Village police officer accompanied by the Methodist pastor rushed and placated the family to stop. They invited the old patriarch into a nearby home and, after more than an hour, managed to convince him to call off the strike. Everyone knew that without their intervention, people would have died. Until today, the two families continue to abhor each other.
The above is just one of the many conflicts involving family honour in Rabi. This type of dispute is very serious since it is not contained in a particular village but could spread to other villages due to intermarriages.
2. Stealing
Another issue that is currently the cause of major concern in Rabi is theft. Stealing is one of the most serious traditional offences of the Banaban culture. In traditional Banaban culture, those who were caught stealing would be exiled from the mainland (13). The seriousness of the stealing was attributed to the fact that prior to moving to Rabi, the homeland of the Banaban was an isolated island with very few natural resources, and they were just enough to sustain the little population found on it (14). Thus, any theft of an individual’s goods or property would affect their survival.
In Rabi, theft continues to be a serious crime. For the first few years since they arrived, stealing was an unknown practice. However, gradually in the late 1970s, the attitude began to change as unemployment increased in Rabi, and youths began to be restless, involving themselves increasingly in stealing.
TRADITIONAL DISPUTE RESOLUTION MECHANISMS
Like other societies in the Pacific, the Banabans have their traditional way and methods of resolving conflicts. This usually involves the whole community and has been in existence from time immemorial, according to Banaban lore. Some of these methods are as follows:
1. Bo-n-tari (Fight between Brothers)
In the Banaban culture, the relationship between the male members of a kinsgroup is very powerful(15). From childhood, young boys were taught to compete with their other male cousins in virtually all aspects of their growing up. This ‘rivalry’ is continued until their adolescent years.
The ‘tari’ (brother) relationship can be surmised as follows:
1. Male siblings of a family
2. Their male first-cousins from both parents
3. Male-second cousins from both sides
4. Male third-cousins from both sides.
You are allowed under custom to take anything from your ‘tari’. This includes personal items (such as clothes from the younger boys) and even household items (such as television from adult men). The person who owned the items could not say anything nor refuse anything that his “tari” takes from him. In return, when the person who had his belonging taken from him does the same, his ‘tari’ cannot refuse him. This reflects the give-and-take nature of the system where everybody wins.
In relation to disputes, when a male member of the community does something wrong or is accused of disorderly conduct, it is his “tari” who is the first one to inquire into the matter and once satisfied that he is guilty, they would meet out his punishment. This involves verbal and physical assaults which usually result in severe injuries to the accused. No one in the community stops the assault which is seen as the “natural way of justice” and that that victim “deserved” the beating that he received (16).
This also includes dispute regarding gossip or rumours. For instance, once you hear that a male cousin of yours is spreading vicious stories defaming your character, you have the right to go and challenge him to a “duel” which would be fought outside the perpetrator’s home (17).
Perhaps the most interesting aspect of this method is that once the beating is meted out by the perpetrator’s tari, the matter is at once forgotten and the matter becomes a non-issue (18). Their relationship goes back to normal and the community forgives the mistake made. The holding of a grudge against someone is strongly discouraged in the Banaban culture.
2. Community Elders (kaara)
Respect for elders is an integral part of Banaban culture. They include te Unimwane (old men) and te Unaine (old ladies) from the community who are usually above sixty years of age (19). The elders hold a very special and revered position in all Banaban families. It is important to note, that in Banaban custom, elders from both genders hold equal powers and rights. They are the major decision-makers in the villages, and what they decide is final. In each village, major decisions concerning the welfare and development of the village are made by the elders. The seat of the elders is the maneaba (or village hall), usually the largest building in the village.
Whenever a major development or project is planned to be done in the village, the approval of the elders is mandatory.
In relation to disputes, the elders of the village where the problem arose would be brought to solve it. They would summon the disputing parties to the Maneaba, where they would hear from both sides. They would then deliberate on the matter and give a verdict. Although only one party is the victor, the elders usually come up with a compromise or consolation so that the guilty party does not become derelict in the village (20).
Rorobuka
Under the Elders System, the Rorobuaka or young men of the community are the enforcers of the decisions made during their meeting at the Maneaba (21). Rorobuaka are all able-bodied man in the village, usually ranging from 20 to 30 years of age (22). They are the military arm of the villages and enforce orders given from the Maneaba. These men do not question any orders given by the elders and are very effective in maintaining peace on the island. In case of inter-village disputes, the Rorobuaka from both villages carry out attacks on each other. They only attack each other, but no women, children or elderly person is harmed (23).
Another reason why this system is the most effective one in terms of upholding law and order is that each household unit, regardless of their villages, has male members of their house as part of the rorobuaka. This is in addition to the fact that their elders (from their household unit) are part of the elder's system that gave the order. Thus, this special system where each household is linked to the highest decision-making body on the island and its enforcers is vital and is perhaps the very reason that the elder's system is still widely respected and remains intact among the Banabans in Rabi.
3. Maungatabu
The Maungatabu (literally meaning "Holy Mountain") is by far the most important meeting for people in Rabi. It is a meeting that involves the whole community (even young people and children) and is only invoked when a major issue or event that would affect the lives of the whole community is about to occur (24). While the Banabans probably adopted this meeting method while they were in Oceans Island (25), it has now become entrenched in their culture.
In this meeting, while it is led by the elders (who are also the moderators), the whole community is given a chance to speak out their minds and opinion with impunity (26). The Maungatabu is usually held in the village or church halls to accommodate everyone. Maungatabu meetings typically last for hours, and during the 1967 meeting regarding phosphate money payment; it lasted for 10 hours before a consensus was made (27). The rorobuaka also play their part which is to ensure that no violence occurs, and are ready to assist the elders in this regard.
1. Any decision agreed at the Maungatabu is final. No Maungatabu decision has ever been challenged by individual members of the community in Rabi since the first Maungatabu in 1945 (28). This is largely due to the fact that since everyone in the community took part in it, there is no room for opposition since the majority of the members supported its decision. Those initially in the opposition now understood the basis of the majority view and were prepared to accept it.
The purpose of the Maungatabu is to ensure that any issue or disputes affecting the people of Rabi (whether instigated by individuals or villages) would have to be resolved at the Maungatabu on that day to prevent it from aggravating any further (29). Today, the Maungatabu is still practised and greatly revered in Rabi.
INTRODUCED CONTEMPORARY DISPUTE RESOLUTION MECHANISMS
Banaban Settlement Act
The enactment of the Banaban Settlement Act of 1946 (30) was the single most important event that changed the history of Banabans in Rabi. It consolidated the positions of the Banabans in Fiji while at the same time affecting the whole process of their leadership and organization process- including the traditional dispute-resolution mechanisms. It introduced three institutions that would be the basis of governance on the island with the ultimate aim of taking over jurisdiction of dispute resolution on the island.
1. Rabi Council of Leaders
This body was formally established to look after the affairs of the Banabans in Rabi. It was formed after consultations with the Banaban adviser and the government of Fiji (31). The Council consisted of eight elected members (two from each village) who would nominate a Chairman to lead out (32). Section 4 of the Act empowers the Council to contract and develop Banaban lands back in Ocean Island. Section 5 gives it authority to establish levies on the island people to finance the running of the Council (33). It also charges it to look after the general welfare of the Banaban people regardless of age or gender. In terms of dispute, the Council has the mandate to hear them through its councillors from the four villages.
Thus, the councillors were to record disputes from the villages and raise them up in the Council who would then decide on further steps to take.
1. Rabi Island Court
The second body that was established by the Act was the Rabi Island Court. Section 8 (2) (34) states:
"There shall be on Rabi a Court to be called the Rabi Island Court which shall consist of the Tribunal and such other person or persons as the Minister may appoint and shall be held at such times and places as may be necessary."
This Court is very unique in that it does not need a qualified Magistrate to adjudicate, but rather it could be any individual who has knowledge of Banaban custom. The establishment of the Court had a major effect on the island. Now, people had a choice on where to raise their grievances to. They could bypass the Elders and seek justice on their own. Any dispute on the island was raised to the Court who would then give its ruling on the matter.
The enforcers of the Court's decisions were the Island Police which was also established under the Act. The Rabi Island Police thus took over most functions of the Rorobuaka (35).
2. Lands Tribunal
The Lands Assessment Tribunal is the third institution which, although it comes under the Magistrate Court, performs independent functions from the former. The tribunal is empowered to deliberate and adjudicate all matters relating to land in Rabi. This includes ownership, wills and boundaries. These roles were usually done by the Banaban elders, but in consideration of impartiality and fairness, the tribunal now plays this role. However, since it was understood that knowledge of traditional Banaban land lore is necessary, the members of the tribunal consist of four elderly Banaban men from each village who are nominated by the village Maungatabu (36).
Their decision on land disputes in Rabi is binding.
EFFECTS ON TRADITIONAL DISPUTE METHODS
The above-mentioned dispute resolution methods have had a tremendous impact on the people of Rabi. When they were first established in 1945, the people were quite curious and wondered whether it would work or not. Most of the elders I interviewed stated that many were distrustful of the mentioned institutions and their functions (37). However, the most affected were the traditional dispute-resolution mechanisms that have been in existence in Banaban society since time immemorial. Some elders felt that the introduced institutions challenged the very existence of traditional bodies such as the Elders system and have effectively usurped many of their powers and responsibilities (38).
However, on the other hand, the introduction of these institutions have somewhat helped preserve the traditional elements of the dispute- resolution mechanisms. For instance, the using of elders to sit in the Lands Tribunal is in accordance with the Banaban custom of elder reverence. This is also found in the Rabi Council of Leaders composition, which later on reserved four of the 8-seat Council for elders (39).
Also, the other major victory for traditionalist is the inclusion of the Maungatabu meeting to be followed by the Rabi Council. This is also entrenched in the Banaban Settlement Act 1945 (40) which mandates the Council to hold at least six Maungatabu per year on Rabi (41). During this Maungatabu, the Council has to answer any queries raised by the people and has to show audited expenses and provide a satisfactory explanation to the people for any developments they have undertaken during their term in Office.
COMPARISON After looking at the elements of the two different types of Dispute Resolution on Rabi, we can draw certain parallels as well as differences between the two.
1. Cost - seeking redress for disputes in the traditional method is quite expensive. The individual or group seeking redress must be ready to provide necessities such as food and transportation cost for elders to meet and try to resolve the dispute. On the other hand, the court system costs nothing since all they do is avail themselves in the Court and attend their case hearings. 2. Time - Traditional dispute-resolution methods also take time. For instance, at times, reconciliations have to be delayed since the elders required to take part couldn't do so due to illnesses or other reasons. This would delay the processes and aggravate the problem. On the other hand, the Court system is very efficient and timely in serving justice, and it usually takes a day for a dispute to be resolved. 3. Approach - the approach that customary dispute-resolution mechanisms have towards the dispute is that of compromise and dialogue. It does not want any of the parties to lose everything but seeks to find common ground where even the losing party would benefit. On the other hand, the court system is very adversarial in nature, and there is only one winner in any dispute.
CONCLUSION In conclusion, it is quite evident from the research project that customary dispute-resolution mechanisms are very important in the Banaban culture. They are part and parcel of everyday living in Rabi, and everyone on the island plays an effective role in how it operates. These mechanisms had been in Banaban tradition and passed down to each succeeding generations and operated effectively in their society. However, the move to Rabi Island saw major changes that affected these mechanisms. The introduction of Western-based institutions such as courts has somewhat diminished the role and effectiveness of the customary mechanisms. However, as also identified in the research project, the initiators of the contemporary methods knew that a hybrid system is needed to make the new changes work. Thus, many elements of the traditional methods survived such as the Elders role in resolving land disputes at the Lands Tribunal and the preservation of the Maungatabu which is still the most influential decision-making body on the island. It is important to note that while the contemporary methods are being utilized, the traditional system is also being practised nevertheless by people on the island. Respects for elders still exist, and the family unit is still being preserved. It is thus evident that while many Banabans have accepted the changes to their dispute-resolution system, most of them still hold on and practice the traditional methods since it reflects their true identity and culture.
Acknowledgments
The following Banaban elders whom I managed to interview for their invaluable insight into traditional Banaban lore and customs:
1. Tamoaieta Bakia (Uma Village)
2. Maibintebure Burataake (Tabwewa Village)
3. Mareta Kaitarawa (Buakonikai Village)
4. Benrenga Aaron (UmaVillage)
Please DOWNLOAD a full copy of this document - Customary Dispute-Resolution Mechanism on Rabi Island for the list of references and more information.
Jacob Lanyon
Banaban
Lawyer/ Solicitor, Suva, Fiji
Jacob is a Banaban who practices law in Fiji. His law firm Lanyon Lawyers covers a wide range of Laws including Contract Law, Criminal Law, Family Law, Employment Law, Torts and other areas of Civil Law with an understanding of people's needs.
He wrote this research project towards his Law degree at the University of South Pacific, 2013. His project examined traditional dispute-resolution mechanisms of the Banaban community in Rabi Island.
He is an active supporter of Banaban issues in today's society.