Customary Land and the Language of the Common Law

Abstract

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.