Concept: Land Administration
The Protectorate included 3,833,597 hectares (9,500,000 acres) of land and a large sea area. A small reduction in size occurred in 1975 when Pockington Reef and its waters was given by the Solomon Islands to Papua New Guinea as an independence present; the reef is now part of Milne Bay Province. The sea boundaries expanded in the 1970s when a two hundred-mile exclusive economic zone was introduced, covering 1.3 million square kilometres.
Indigenous land tenure is complex and varies between islands, and also includes reefs and the surrounding ocean. A generalisation would be that land tenure was almost always corporate, not individual; kin groups controlled land, and there was no concept of permanent alienation or separation of land from community and spirituality. Solomon Islands land tenure was alien to British concepts of land ownership and the needs of the Protectorate to encourage investment. When the Protectorate was proclaimed in 1893, no attempt was made to consider the nature of land rights and interests in land. English land law is dependent on the fundamental doctrine that the ownership of all land is lodged with the Crown. Legal briefs prepared for the Protectorate Government as preparations were made for independence in the 1970s cast considerable doubt on the legality of enforcing English land law in the Solomon Islands.
The first purchases of land by outsiders began in mid-nineteenth century, for small areas for trading stations. For instance, John MacDonald purchased land at Star Harbour, Santa Ana Island in the late 1870s to begin life as a trader. (Bennett 1987, 60) Then, about 1885, planters began to buy land for coconut plantations instead of just trading. In the Western Solomons and Isabel, much of which were under German control from 1886 until the end of the century, a system of government 'ground books' was used to record purchases, and in the remainder of the archipelago a copy of any land agreement was sent to the Western Pacific High Commissioner for registration.
Large-scale land alienation followed the proclamation of the Protectorate. It was some years before the first Resident Commissioner, C. M. Woodford (q.v.), could convince the British Government that the Protectorate had any financial prospects and that 'unoccupied lands' should be declared the property of the Crown, by which time some land speculation had begun. Woodford had issued a Solomon Islands (Land) Regulation in September 1896, which declared all land 'contracts' to be provisional until investigated by Protectorate officers. The Regulation stipulated improvement clauses for land acquired as trading stations and for agricultural purposes, and provided for negotiation of leases with Solomon Islanders. This was a marked swing away from the Fiji situation where Britain had assumed Crown rights to all land upon cession in 1875, even though indigenous land rights were protected by the Governor, and also away from the situation in British New Guinea where the indigenous people were guaranteed rights to their customary lands but large area of 'waste' lands were made available for sale or lease. The government there handled all land matters. In the BSIP, no attempt was made to investigate or query pre-Protectorate land sales and Europeans faced looser controls on access to 'native land'. This 1890s trend towards encouraging European enterprise, combined with rhetoric supporting 'native rights', was to provide the markers of land policy in the BSIP. The consistent theme in Fiji, British New Guinea and BSIP land policy was recognition of 'native rights' to land they occupied. In the Protectorate, the Crown only ever claimed rights to 'unoccupied' land and never made a claim to the underlying title of all land. (Heath 1981, 64) There were questions regarding the jurisdiction of Protectorates, since they were considered to lie outside the Territorial Dominions of the British Crown. Jurisdiction was limited by the Foreign Jurisdiction Acts, and applied only to British subjects and not to other foreigners or indigenous peoples.
The first attempt to alienate large areas of land in the Protectorate was when the Pacific Islands Co. Ltd. (1898-1902) (q.v.) between 1898 and 1902 negotiated to obtain two hundred thousand acres in the Western Solomons. The company partly foundered over the lack of certainty over the right of the Protectorate to claim that lands that were 'waste and vacant' were the property of the Crown. A 1902 rebirth of this company included Lever Brothers, British soap manufacturers, and led to their long-term financial presence in the Protectorate as Levers Pacific Plantations Ltd. (q.v.). Levers' involvement drew in Burns Philp & Co. (q.v.) and a number of lesser companies and individual planters. The cessation of labour recruiting to Queensland in 1903 and to Fiji in 1910 ensured a sufficient labour supply was available for plantation development in the Solomons.
In 1901, Woodford calculated that Europeans had planted 988 acres with coconut palms. Just four years later the figure was 3,423 acres. (Hookey 1969, 236) The Pacific Islands Co. Ltd., through which Lever Brothers obtained their initial land, gave them control of two hundred thousand acres of Certificates of Occupation, not of land leases. Onwards from 1905, Lever Brothers set to buying freehold land directly from the indigenous owners (28,870 acres) and from existing traders and planters (51,000 acres). By 1907, Levers controlled three hundred thousand acres. Sir William Lever eventually took over the Certificates of Occupation but only after the Colonial Office extended them from 99 to 999 years, and at a low price. Up to the First World War, Lever Brothers, which became Levers Pacific Plantations Limited, concentrated almost entirely on developing their freehold land. (Hookey 1969, 237-238)
Woodford created the position of Government Surveyor in 1911, which was held by G. R. Turner until his resignation the next year. The next appointment was S.G.C. Knibbs, who arrived on 22 May 1913 from previous employment with the Colonial Sugar Refining Co. (CSR) in Fiji. Knibbs was also appointed as Acting Superintendant of Public Works on 13 June 1918 and Registrar of Land Titles from 1 July 1919, and Chairman of the Mining Board under the Mining Regulation of 1927. He retained these positions until he retired on 21 October 1939. In 1918, the department was expanded with the appointment of Felix F. King to the position of Government Surveyor, but like Turner he resigned quickly after making only a few surveys. He was replaced by Alexander H. Wilson, who like Knibbs had been a CSR field engineer in Fiji, and who on 1 January 1941 succeeded Knibbs as Commissioner of Land and acting Superintendent of Public Works. Wilson also added to his portfolio the position of Registrar of Land Titles and Chairman to the Mining Board. Knibbs and Wilson were effective, but surrounded by incompetents. The next addition to the department was H. W. Sando, who was appointed as a temporary Government Surveyor on 1 October 1924, but was forced to resign by ill health. E. C. Chester came next, well qualified with American degrees in surveying and engineering, but he proved inept and was permitted to resign. Next to occupy the position was E. L. Leembruggen from Fiji, but he too was not up to the task. To solve the ongoing difficulty, the administration decided to train survey office clerk N. L. Nevison to be a surveyor. He qualified, and became Government Surveyor on 27 June 1929, but was retrenched the next year because of the Depression. There were no further appointments until Knibbs retired in 1939, which severely limited the amount of surveying possible. Surveying remained combined with public works, but the latter dominated. (Wilson 1946, 1-2)
Until 1912, it was possible to purchase freehold land directly from Solomon Islanders, and also, once the Protectorate began, to lease land declared as 'waste', for up to 999 years, with 'Certificates of Occupation'. However, the basis of the legal right of the Protectorate Government to claim rights over 'unoccupied' land was not entirely clear. The Colonial Office gave an opinion in 1900 that the Crown had no right to declare any land in the Protectorate the property of the Crown and that the 'vacant' land provision of the 1896 Regulation was invalid, but this had been superseded by a 1899 Law Office ruling that it was legal to declare land to be Crown land if the inhabitants were 'practically savages without any proper conceptions of ownership of land'. These two opinions were at cross-purposes and the solution was to issue Certificates of Occupation on land 'neither owned, cultivated nor occupied by any native or non-native person'. (quoted in Heath 1981, 64)
The Solomon Islands (Land) Regulation 1896 and the Solomons (Waste Lands) Regulation 1904 provided the basic legislative framework to alienate over four hundred thousand acres of native land (162,000 hectares, or about 5 percent of the BSIP) between 1900 and 1914, most of it accessible coastal land for coconut plantations. This land was developed for foreign companies with no thought of indigenous development; Woodford believed that Solomon Islanders were dying out and that it was in the best interests of the government to buy and control the land. The government paid a standard price of two shillings an acre and for a 10 percent commission would broker leases. The intention was to allow the government greater control over land and to stop inflation. However, Solomon Islanders were unaware of the huge acreage that had passed into foreign hands, and had no understanding of the British land tenure concepts involved, or that their actions in marking papers and accepting gifts had separated them from their customary lands. Eventually, the strength of protests by Solomon Islanders, particularly in the New Georgia Group, on the Guadalcanal Plains and the west coast of Malaita brought about a lands commission.
In 1906, Resident Commissioner Woodford requested the passing of new regulations to enable the government to purchase land directly, which could then be sold at a reasonable price, but he was refused. Woodford continued to negotiate and in 1911 it was agreed that all non-government land purchases should be banned after 1 January 1912. The final form, the Solomon Islands Land Regulation was issued in March 1914 and enabled leases to be issued for ten to ninety-nine years, with a forfeiture clause. With minor amendments, this Regulation, which repealed the 1896 and 1904 Regulations, remained in force until 1959. Land could be leased to 'non-natives' for cultivation, grazing and building purposes, through the Resident Commissioner, 'if the consent of the owners thereof is first obtained and if the land to be leased is not under cultivation nor required for the future support of the natives'. (King's Regulation No. 3 of 1914) This replaced the long-term interests in land created by the government under the Waste Land Regulations made between 1900 and 1904. The new Regulation also halted the previous system, which allowed 999-year leases, but occasionally after 1914 owners of freehold were allowed to use a lease in perpetuity. In 1918, the government introduced regulations to enable the compulsory registration of land title deeds, although no provision was made for investigation of the validity of a deed lodged with the Land Registrar. (AR 1971, 23)
Another step towards regularisation was the Lands and Surveys Department, begun in 1912 with the appointment of the Commissioner of Lands and Crown Surveyor. A government Surveyor was appointed to assist him in 1919. Leases could be Native Leases, when the Resident Commissioner acting on behalf of the owners leased land to non-indigenous settlers, or Crown Leases, when the land applied for was purchased by the Crown from the owners and leased direct to the applicant. The rent for cultivation leases was 3d. per acre for the first five years, 6d. per acre for the second five years, 3/-. per acre from the eleventh to the twentieth years, and 6s/- per acre from the twenty-first to the thirty-third years. At the expiry of the twenty-year or thirty-three-year period, the rent was assessed at a rate not exceeding 5 percent of the unimproved value of the land. A condition of cultivation leases was that one-tenth of the area leased had to be cultivated within five years. However, some aspects of the old system continued and non-government Europeans continued to deal directly with Solomon Islanders in land matters, but when the agreement was ratified the government became the owner and renter of the land.
The Lands Commission which operated between 1919 and 1924 only investigated fifty-five claims out of some three hundred European titles. There were two Commissioners, Captain A. A. Alexander and Judge Sir J. Beaumont Phillips. Phillips made it his practice to hold the hearing on the land in question, which revealed numerous discrepancies. Phillips cut one of Levers Pacific Plantations claims in the Western Solomons in half, from 263,340 to 137,820 acres. Rather than quelling indigenous discontent, the Phillips Land Commission (q.v.) drew attention to the inequity of the land alienation. In the 1920s and early 1930s, the Lands Department concentrated on surveys connected with the Phillips Land Commission, and the 1930s and 1940s brought little change in land policy and administration. Levers' old, very extensive Certificates of Occupation were replaced by leases, and the Australian Navy was preparing large plans of surveys and coastal traverses of the islands of Guadalcanal, Russell, Shortlands and Banika. The Lands Commission occupied most of the time of the limited Lands Department staff, exacerbating the difficulties with advancing routine surveys. Even so, by 1930 approximately half of the alienated land in the Protectorate had been surveyed. (AR 1930, 14; Wilson 1946, 3)
During the Depression years of the 1930s, survey work declined and the combined department did not even have a clerical position. Mining had begun, which gradually increased that section of the workload. Knibbs became totally disheartened and resigned after a visit by High Commissioner Sir Harry Luke in 1939. His Foreman of Works suffered the same lethargy. A new clerk was appointed on 24 December 1937, and showed promise, but due to illness was never confirmed within the Colonial Service and resigned in December 1941. By this time the Second World War (q.v.) had begun, which brought on more frugality, and led to the demise of the non-performing Foreman of Works. When Japan entered the war, surveying and public works came to a standstill, and with Spencer's resignation, Wilson was left alone in the department. When the Protectorate's government was evacuated to Malaita along with some of the Lands Department records, Wilson remained in Tulagi on military duty. When the final evacuation occurred on SS Morinda on 8 February 1942, the remainder of the Land Registration Records were removed from Tulagi and sent to Sydney. The Japanese looted and destroyed the remaining materials in the Lands Department strongroom. During the war years, there was an attempt to reconstruct lost records from company and individuals' land files. In September 1945 the records were returned and housed in a fireproof room in temporary headquarters in Honiara, and a Lands Department office was reopened, with the function of the Public Works Department now separated. (Wilson 1946, 3-4)
After the war and into the early 1950s, the administration tried to extend European access to and development of land. The 1914 Land Regulation still applied in 1954: indigenous inhabitants controlled 6,927,600 acres and non-indigenous residents held 354,870 acres under freehold, Crown Leases, Native Leases and Occupation Licences. Another 66,030 acres were held as Crown Land and 11,500 acres as Crown Waste Land. (AR 1953-1954, 18) Funds for a Special Lands Commission were made available in 1951, and the investigation began in 1953 under Colin Allan (q.v.), tasked with examining Solomon Islanders land customs and recommending ways of using unclaimed land. Allan, the last pre-independence Governor of Solomon Islands (1976-1978) in 1998 published Solomon Safari, 1953-58, a small two-volume book that gives good details about the process of the Commission. Crown Surveyor A. H. Wilson had requested such a commission in the inter-war years, and it was based on his minute that Resident Commissioner O. C. Noel (q.v.) had applied to the Colonial Development and Welfare Fund to finance the expensive survey. The Commission began in May 1953, was suspended in May 1954, and resumed in July 1956. An interim report presented to the High Commissioner in May 1954, covering the Western and Central districts, was largely accepted and implemented. The Lands Department was grossly understaffed, however, and was incapable of supervising even the expansion of urban lands in the Protectorate; there was no Commissioner of Lands. (AR 1953-1954, 7, AR 1955-1956, 7, Allan 1989, pt. 1, 14) Allan's final 1957 report was in line with British policy at the time and advised a systematic registration of customary land to clarify individual rights and encourage productive land use. It proposed establishment of a Solomon Islands Land Trust Board to hold the title to lands declared vacant. The resultant new land law was introduced, as the Land and Titles Ordinance 1959, which for the first time included the concept of adjudication and registration of customary land. The Ordinance was poorly drafted and had many flaws, partly due to Allan's misinterpretations of indigenous land tenure systems. It made no allowance for systematic or planned work, or for sufficient inquiries to be made into particular areas before they were registered.
The 1959 Ordinance enabled the introduction of new tenure terms, which allowed a move away from some of the more confusing terms found in English law. The Ordinance laid down general principles of land tenure, which allowed a private citizen to own an estate in land either as perpetual or fixed-term. These corresponded broadly, but not exactly, with the interests known in English law as freehold and leasehold. There was no intention to modify existing customary tenure, unless and until the owners acquired registered titles. The Ordinance contained provision for setting up a Land Trust Board charged with furthering the use of land in the Protectorate, in particular to bring economic areas of vacant land under public control. A panel of Solomon Islanders were appointed to be members of the Board for the purpose of decisions to take effect in their respective districts. The system of land registration adopted was the 'Torrens System' (where the state maintains a register of land holdings as a guarantee of indefeasible title to those included in the register), to cover all private estates in land, except customary land. Private individuals received security of title and there was no legal or other distinction between Solomon Islanders and foreigners in the rights to enjoy or dispose of their interests. There was a provision for individual Solomon Islanders, or groups of Solomon Islanders, to acquire registered estates within customary lands. (AR 1959-1960, 23)
Once the 1959 Ordinance was brought into operation, a number of defects were found in it. Prior to 1963, the land system remained based on local statute and pre-1926 English law. In July 1963, an amending ordinance was passed to allow the Commissioner of Lands to negotiate leases of customary land in addition to outright purchase. The result of the 1959 and 1963 changes was that three distinct tenure systems existed side-by-side:
- The customary system which varied from island to island and within islands;
- The English law system and pre-1963 Protectorate legislation which applied to unregistered alienated land which had at some stage been sold or leased by Solomon Islanders to non-Solomon Islanders;
- The system provided for initially by the Land and Titles Ordinance 1959 and modified and contained in the Land and Titles Ordinance (Cap. 93), enacted in 1968, which applied to either of the first two categories when brought under the provisions of the 1963 Ordinance. (AR 1974, 34)
In 1964 and 1965, further study was done, using overseas examples on how to adapt the system to Melanesian tenures. Another amendment was made in 1964 in regard to estates created within areas of customary land, the addition of provision for tenancy in common and profits, the abolition of the registration of titles procedure and a new land registration procedure of the register itself. At the same time, the Solomon Islands Land Trust Board was abolished. (AR 1963-1964, 24; Hughes 1970) Another change was made in 1965-the Land and Titles (Amendment) Ordinance No. 5-which contained clarifying provisions. The most important of these reintroduced the principles of acquisition of title by adverse possession, and modified the law in relation to the devolution of interests in land on intestacy. This meant that on intestacy, devolution of interests in registered land of Solomon Islanders would be in accordance with indigenous usage, and in the cases of non-Solomon Islanders in accordance with the law relating to the administration of their estates. (AR 1965, 27)
The Ordinance was further amended in 1968, producing the version that still operated at independence in 1978. It retained the new tenurial terms from the 1959 version, but more carefully defined all the interests in land with which it was concerned. It simplified registration of land and deleted the provisions that concerned vacant land. The new system provided for conversion from the old statutory system, which had originated in 1896 legislation and had been supplemented by numerous subsequent enactments. Purchase of land covered by that legislation was considered to be of a freehold nature, while the 1968 Ordinance defined the interest in land as being of a similar nature and based upon a document of title.
Registration of land was substituted for the former method based on the pure 'Torrens System', which envisaged that land, which was granted a title, belonged in the first place to the government, and allowed for the concept of vacant land. Under the Torrens System, the title to land was registered with the Lands Office, and a permanent title was issued to the landowner, which had to be produced when the land was subsequently sold. Joint ownership of land was also provided for, which meant that on the death of one of several joint owners his or her share in the land reverted to the surviving joint owners.
The new system provided for the registration of the land itself, recorded by the Lands Office, constituting a valid title, but without a Certificate of Title being issued. Provisions called 'Land Settlement' were also included for the systematic survey and registration of land held prior to registration under native customary land tenure. Land registered in this way could be disposed of at will. The provision for joint ownership in the case of trusts was continued, as was ownership in common by up to five owners of registered land. The British common law right of long-term but unsanctioned occupancy leading to title was extinguished, except within native customary land. This was done to prevent squatters exercising any claim over Crown land. The Ordinance also provided for the registration of rights to profits from the land by a person who was not an owner, where they owned profitable crops or trees on the land. (AR 1971, 21)
The 1968 Ordinance defined the interest as 'a perpetual estate in land', which consisted of the right to occupy, use and enjoy in perpetuity the land and its produce subject to the payment of rent due and the performance of any obligations due. Disposal of the interest in the estate, in whole or in part, during the lifetime of the owner or at his or her death was allowed under set terms. 'Fixed term estates' were also allowed for a certain set period (often forty-nine or ninety-nine years), subject to the payment of rent due and the fulfilment of obligations due, and they could be disposed of during a lifetime or through a will. Land could also be leased. Customary land could not be disposed of to non-customary owners except under special circumstances relating to marriage or inheritance. Conversion from customary tenure could only be undertaken by the government in a systematic manner. This was based largely on a Kenya precedent that required adjudication of customary interests. This process was called 'land settlement' and allowed for the consolidation of fragmented holdings and the rationalisation of boundaries. (AR 1971, 23)
The Lands Department carried out conversion of freehold and leasehold interests to the new system, with the aim of converting all interests in privately owned land in Honiara, Auki and Gizo. The Ordinance did not deal with customary land, except to provide guidance on the way the government could buy or lease land, and the way owners could convert their title to registered title. In August 1977, in preparation for independence, the Land and Titles (Amendment) Act was introduced to ensure that, with a few exceptions, in future only 'Solomon Islanders' (defined as people with two grandparents born in the Solomon Islands) could own perpetual estate in land, meaning registered freehold. All others could only own leases for up to seventy-five years. All existing freeholds or longer leases held by non-Solomon Islanders were converted to leases with development obligations, and the necessity to pay rent after seven years. The remaining holders of unregistered alienated land had to apply to register their title or surrender the land.
Active participation by Solomon Islanders in formulating land policy did not begin until the early 1970s. The Governing Council (q.v.) (later replaced by the Legislative Council (q.v.)) established a Committee on Registration of Customary Land in 1969, which toured rural areas and sought advice. The committee's report, against the previous concentration on systematic adjudication and registration, recommended that customary land courts be given the power to demarcate land boundaries. The report was tabled but never debated by the Council, probably because the colonial government did not approve of it. As a result, the government's proposed 1972 Land Development (Control) Bill was not supported by Solomon Islands politicians and was defeated.
Instead, the government passed the November 1972 Land and Titles (Amendment) Act, which simplified procedures for registering groups and landowners. Then, in 1973, a Select Committee on Lands and Mining was established, which met from January 1974 to March 1975. Its final report, tabled in March 1976, made many recommendations, five of them major:
- All sale of land to non-Solomon Islanders was to stop and undeveloped or deserted alienated land was to be returned, and all perpetual estates had to be converted to leases.
- Area Committees were to begin to record customary land and customary land rights and registration had to be in terms of group, not individual interests.
- Area Committees could arbitrate land disputes, with a process in place to appeal to local Land Courts and to Customary Land Appeal Courts.
- Timber cutting agreements could be made directly between landowners and timber companies.
- Landowners were to be involved in negotiations between companies and the government for land leases for mining.
The Committee's report was studied by the leaders of the self-government period, and in March 1977 they produced a White Paper on New Land Policy. Some of the issues at stake became part of the independence negotiations with Britain. In August 1977, an amendment was made to the Land and Titles Ordinance which converted all perpetual estates held by non-Solomon Islanders into fixed term estates held from the government, effective from 1 January 1978, with a maximum duration of seventy-five years for leases and a seven-year rent-free period. There was also a new definition of 'Solomon Islander', which excluded Gilbertese migrants, but the provisions were never enforced for existing Gilbertese settlers. (Larmour 1979a; Heath 1981, 70-75; Bennett 1987, 147; NS 16 Dec. 1964, 15 May 1965, 15 June 1965; Hughes 1970)
- Allan, Colin H., Solomons Safari, 1953-58 (Part I), Nag's Head Press, Christchurch, 1989. Details
- Bennett, Judith A., Wealth of the Solomons: A History of a Pacific Archipelago, 1800-1978, University of Hawai'i Press, Honolulu, 1987. Details
- Hookey, J.F., 'The Establishment of a Plantation Economy in the British Solomon Islands Protectorate', in K.S. Inglis (ed.), The History of Melanesia, Second Waigani Seminar, Research School of Pacific Studies, Australian National University and University of Papua New Guinea, Port Moresby, 1969, pp. 229-238. Details
- British Solomon Islands Protectorate (ed.), British Solomon Islands Protectorate News Sheet (NS), 1955-1975. Details
- Heath, Ian, 'Solomon Islands: Land Policy and Independence', Kabar Seberang: Sulating Maphilindo, no. 8/9, James Cook University, Townsville, July, pp. 62-77. Details
- Hughes, A.V., 'Tenure Conversion in the Solomons (1965-1969)', South Pacific Bulletin, vol. 20, no. 1, 1970, pp. 41-45, 47. Details
- Wilson, Alexander H., Lands and Public Works Department: A Brief History, A. H. Wilson Collection, British Museum, Document 3784, 1946. Details
- British Solomon Islands Protectorate, British Solomon Islands Protectorate Annual Reports (AR), 1896-1973. Details
- Honiara 1966 Land Use in