Jennifer Clare Corrin

Transforming management of tropical coastal seas to cope with challenges of the 21st century

Over 1.3 billion people live on tropical coasts, primarily in developing countries. Many depend on adjacent coastal seas for food, and livelihoods. We show how trends in demography and in several local and global anthropogenic stressors are progressively degrading capacity of coastal waters to sustain these people. Far more effective approaches to environmental management are needed if the loss in provision of ecosystem goods and services is to be stemmed. We propose expanded use of marine spatial planning as a framework for more effective, pragmatic management based on ocean zones to accommodate conflicting uses. This would force the holistic, regional-scale reconciliation of food security, livelihoods, and conservation that is needed. Transforming how countries manage coastal resources will require major change in policy and politics, implemented with sufficient flexibility to accommodate societal variations. Achieving this change is a major challenge - one that affects the lives of one fifth of humanity.

Accommodating Legal Pluralism in Pacific Courts: Problems of Proof

The interface between state legal systems and customary law is the site of a number of complex problems. A particular difficulty lies in accommodating customary law in formal common law court processes, which are typically driven by the adversarial system. An important but much neglected issue within this area is how best to approach the proof of customary law in courts. A threshold question that arises is whether it should be treated as law or fact. Few countries give any legislative guidance on this issue, nor has it been the subject of extensive consideration by the courts themselves. This article examines the issue of proof of customary law and a number of associated questions, focusing on the common law courts in Australia. Comparison is drawn with the position in neighbouring South Pacific Island States, which are also grappling with this issue. The article commences with a discussion of proof of customary law within the broader context of legal pluralism. It then moves on to a survey of the legislation that impacts on proof of customary law in civil and criminal proceedings in Australian courts. Some illustrative case law is then explored. The article assesses the adequacy of the current regime and considers some of the options for reform.

Moving Beyond the Hierarchical Approach to Legal Pluralism in the South Pacific

Abstract In countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘customary’ or ‘traditional’ law and ‘state law’, and between ‘informal’ and ‘formal’ justice. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society and by the interaction between different systems of law. Further, the approach taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions, has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay between the interwoven spheres of ‘traditional law’ and ‘state law’ and a new sphere of ‘blended’ law. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications.Commencing with an overview of the different sources and types of law within the ‘customary’ and ‘state’ law spheres in the South Pacific region, this paper discusses some of the uncertainties and tensions that arise from pluralism in practice. Examples drawn mainly from Solomon Islands are used to illustrate the various ways in which the lines between customary law and state law have been blurred. These include attempts to incorporate customary law in statutes. Two examples of statutes which provide for this are considered, and the case-law arising from them is discussed. Commencing with an overview of the different sources and types of law within the ߢcustomaryߣ and ߢstateߣ law spheres in the South Pacific region, this paper discusses some of the uncertainties and tensions that arise from pluralism in practice. Examples drawn mainly from Solomon Islands are used to illustrate the various ways in which the lines between customary law and state law have been blurred. These include attempts to incorporate customary law in statutes. Two examples of statutes which provide for this are considered, and the case-law arising from them is discussed

Customary Land and the Language of the Common Law

Independence constitutions in most small island countries of the South Pacific acknowledge the significance of customary law by giving it official status in the hierarchy of laws recognized by the state. More particularly, many of those constitutions make special provision for customary land, limiting its alienation and allowing it to be governed by customary law. However, in practice, the philosophy underlying these provisions has been betrayed. While paying lip service to customary law, changes have been introduced through the written law. In addition, more subtle changes have crept in through the inaccurate representation of customary concepts in common law terms. Using examples drawn mainly from Samoa and Solomon Islands, this paper seeks to demonstrate that, in spite of the constitutionally enshrined intention to protect customary land and the customary law governing it, the operation of the common law has led to significant changes in customary land concepts. It is argued that such changes have the potential to bring about dramatic and unplanned changes to customary society in the South Pacific.

A green stick or a fresh stick?: Locating customary penalties in the post-colonial era

Former colonies and dependencies in the South Pacific do not have the luxury of entirely ‘homegrown’ laws. Their legal systems are burdened with a ‘legacy’ of transplanted laws, developed for use in a foreign country, imposed on pre-existing systems of custom and culture. As a result, many small island countries are struggling to balance the demands of law from different sources, designed to operate in fundamentally different circumstances. In addition to the conflict that occurs in areas of substantive law, where customary and introduced law may prescribe a different rule for the same situation, the two systems differ in their approach to procedure, penalties and relief. This paper considers the divide between the theory and practice of introduced law and customary law and examines the way in which conflicts have been dealt with by the courts. In particular, it uses the example of banishment to illustrate the type of problems that arise in a plural system. The paper looks at the balancing exercise which has been necessary when custom, in the form of banishment, comes into conflict with introduced law, in the form of constitutional rights.Legal systems of former colonies are often burdened with a legacy of transplanted laws, developed for use in a foreign country.2 Those laws have usually evolved gradually in the courts of their homeland through the common law, and have been moulded to accommodate local circumstances and adapted in response to societal change. Even where laws spring from the more rigid source of legislation, the process of enactment allows for Acts to be tailored specifically for the country in which they are passed after debate informed by the views of a wide range of local stakeholders. Many recent independent countries do not have the luxury of entirely ‘homegrown’ laws, although recognition of the importance of ‘ownership’ and local resonance seems to be increasing.3 There is some irony in the fact that this has come at a time when many former colonisers have had to adapt to the demands of externally imposed laws, such as International Law and European Community Law. In addition to being developed out of context, transplanted or ‘introduced’ laws, as they are sometimes referred to, are imposed on pre-existing systems of custom and culture.4 Customary law (as opposed to formal or state law) has proved its

‘A Tragedy of Monumental Proportions’: Indigenous Australians and the Sentencing Process

This article explores the tensions between the principles of rehabilitation and community protection in the sentencing of Aboriginal people, especially in the context of dysfunctional and remote Aboriginal communities. In order to explore these tensions, the article draws on the issues raised in a recent Australian case involving the sentencing of nine young Aboriginal men and boys who pleaded guilty to the rape of a 10-year-old girl in a remote Aboriginal community in the far north of Australia. Although many Aboriginal women have called for greater protection for women and children by the criminal justice system, they have argued for community restoration rather than incarceration. This article suggests that, in the context of remote Aboriginal Australia, the focus on victim protection has served to entrench oppression through the continued sentencing preference of incarceration. The article concludes with a call for the decolonisation of justice and explores options by which this might be achieved.

A Question of Identity: Complexities of State Law Pluralism in the South Pacific

Abstract Throughout the world many former colonies are struggling with an inheritance of legal pluralism that gives recognition to both customary law and formal, written law. The interaction of such laws, which are very different in nature, often raises complex questions, especially because in practice the boundaries between them are often blurred. Each has had to adapt to accommodate the other, and in some cases hybrids have emerged. Questions of jurisdiction also arise, since recognition of a discrete legal system requires definition of the community to which it applies. This article explores the question of how, when state law gives recognition to custom, boundaries between different communities are determined within the State legal system for the purposes of legal jurisdiction. The geographical context of this examination is the South Pacific, and in particular Solomon Islands. In many countries of the South Pacific, including Solomon Islands, the Constitution establishes a hierarchy of laws. In this customary law is placed below the Constitution and statute, but sometimes above common law and equity. However, in practice choice of law issues arise and are debated, as it is not accepted that customary law necessarily applies to every branch of substantive law or to everyone present in the country. Whilst most South Pacific countries give special treatment to customary land, in other areas the choice of law rules are unclear and cases are determined on an ad hoc basis. Frequently reference is made to the notion of a ‘personal law’, determined according to whether a party is an ‘islander’. The interpretation of the term ‘islander’, as used in various places and with various meanings in the statute law of Solomon Islands, is shown to raise complex problems. This is the case, whether or not choice of law rules are provided by statute or have to be developed by judicial action. It is argued that it is imperative to have clear definitions, or at least a clear process for identification, if a plural system is to flourish. It appears that in cases of uncertainty the rules underpinning the State system will be adopted by default. If South Pacific jurisprudence is to develop then more appropriate solutions must be found, but this will be best done through exploration of the boundaries of legal identity together with the communities themselves.

From Horizontal and Vertical to Lateral: Extending the Effect of Human Rights in Post Colonial Legal Systems of the South Pacific

A key issue in countries where human rights charters have been constitutionally enshrined is the extent to which those rights apply. Intertwined with this is the question, crucial to the rational evolution of the interrelationship of public international and private law, of what role should be played by human rights law in governing the relationships between private individuals or groups. In the South-West Pacific, where human rights charters were embodied in constitutions at independence, there has been little discussion of this issue, despite its particular relevance to the wider debate on the suitability of human rights agendas developed in the West to newly emerging nations. This article considers the vertical versus horizontal debate in the context of small island countries of the South Pacific, and particularly those countries where there has been friction between human rights and other laws and/or where there has been recent conflict between the State and individuals or sections of civil society. The purpose of this inquiry is not only to establish where those countries now stand with regard to this aspect of applicability, but also to illustrate the necessity of accounting for locally and or culturally specific factors when establishing a human rights regime in any part of the world. The article identifies distinguishing factors in the legal and social systems of South-West Pacific States and puts forward suggestions for the development of South Pacific jurisprudence on human rights.

Judge or be judged: accepting judicial appointment in an unlawful regime

Judicial independence is generally accepted as a key component of the rule of law. It empowers judges to make unbiased decisions without concern for political repercussions. In countries governed by an unconstitutional, unlawful or corrupt regime, such as Zimbabwe,2 Swaziland,3 Pakistan4 and Fiji,5 that independence, and in turn the rule of law, is threatened. More particularly, acceptance of judicial office in an unlawful regime could be regarded as making an implicit bargain with the government to recognise its validity.6 This article begins with a discussion of the importance of judicial independence, both from a national and an international perspective. It then examines the standards of judicial integrity and some of the factors that impact upon independence, including appointment and tenure, and the less obvious influence of jurisdiction. The article then moves on to consider the issues arising from acceptance of judicial office in an illegal regime in the context of Fiji, where lawyers and judicial officers have recently been forced to decide whether or not to accept appointment in a regime with an unelected government. After outlining the background to the latest events in Fiji, the article examines the competing considerations and ethical dilemmas involved in deciding whether to accept judicial appointment in an illegal regime. It then goes on to consider the possible repercussions of accepting such appointment from both a disciplinary and criminal perspective.

Getting down to business: developing the underlying law in Papua New Guinea

At Independence, Papua New Guineas Constitution gave customary laws a prominent place in the countrys legal system. However, for many years Papua New Guineas courts largely ignored customary laws and fashioned the underlying law almost entirely along the lines of common law. In 2000, the Papua New Guinea Parliament enacted the Underlying Law Act 2000, which requires the courts to look first and foremost to customary laws in developing the underlying law. This paper analyses the Act, describing its aims and the methods it employs to ensure that the courts will use customary laws in developing the underlying law. It considers whether Papua New Guinea courts are following the Acts mandates, and, indeed, whether this is possible. The paper considers possible ways forward for Papua New Guinea to create a legal system based firmly on Melanesian values, beliefs and customary laws.