LETTER TO THE EDITOR

October 1, 2003

Dear Editor,

I see that the Asian Development Bank is raising again the issue of land tenure in the Pacific and its affects on development efforts.

In teaching about land systems in economic anthropology, I have found students often have problems with the distributions of rights in land found in Pacific societies. Sometimes professionals have problems too, and fail to distinguish land held by a corporate group from land held communally. Reading the article in Pacific Islands Report, I wonder if the ADB has grasped this vital distinction.

Too often economists have called for the privatization of land, with all rights vested in a single individual person. When these schemes are implemented, one person gets effective legal control of land that many have regarded as theirs. It isn't terribly surprising that the individual owner seeks to dispose of the land and reap the windfall before other parties can challenge his (sic) control. As a result many others are impoverished. Too often I've heard of a "landowner" disposing of a parcel for a pickup truck and a few dozen bags of rice; both disappear quickly while the enduring value of the land is lost forever.

If we remove the veil of preconceptions from our eyes, we might find that" communal" lands held by a corporate group bear some resemblance to corporate property in our own law. The corporation endures beyond the life of any member or officer. There are shareholders with vested rights – and others who have more tenuous interests that only vest when conditions of service are met. There is a CEO, often recognized as a chief or a family head, and rules controlling appointment to the office. There is a board of directors, usually elders of the corporate group, which is usually based in kinship and other forms of affiliation. Another office, often held by a higher chief, may have some kind of lien on the land.

Our corporations can borrow on assets; why can't Pacific landowners? Because few states have adequately formalized the rights and structure of the existing corporate groups in law. I think it is more a failure of imagination than anything else. Most land cases seem to deal with the inheritance of rights - effectively who becomes the CEO - there is little law to my (limited) knowledge addressing the powers of the CEO and the board of directors and the rights of the shareholders. The CEO should be able to put up assets of the corporate estate as collateral, subject to ratification by the board or the stockholders.

Western laws on land and corporations are founded in cultural conceptions of personhood and property. Imposing these on others is bound to be both tricky and disruptive. Formalizing more of the indigenous concepts in law is also going to be contentious and tricky (adjacent islands may have subtle or obvious differences, and different people will have different interests), but it should be easier than the alternative.

Jim Hess

University of California, Irvine

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