iTaukei Land Regime in Fiji

By Tomasi Tuitoga

Key Points

• A majority of land in Fiji is classed as iTaukei land and special rules apply in relation to dealings in iTaukei land which are primarily to protect indigenous Fijian’s land rights.

• iTaukei land may only be leased or licensed with approval from the iTaukei Land Trust Board.

• The recent High Court decision of Seteo Rasau Cakobau v Sandjunes Management Group Limited [2019] HBC 41 FJHC upheld the principles that approval must be obtained by the iTaukei Land Trust Board under the iTaukei Land Trust Act 1940 for dealings in leases concerning iTaukei Land. Simply put, any purported lease of iTaukei land that does not have the approval of the iTaukei Land Trust Board is null and void.

• If you are intending on leasing or purchasing iTaukei land, the consent of the iTaukei Land Trust Board is required, so whether you are an established business in Fiji or an incoming investor you should be aware of the process behind obtaining approval.

Introduction

Land in Fiji consists of three types, freehold land, state land, and iTaukei land. iTaukei land makes up 87% of all the land in Fiji, owned by native Fijian (iTaukei) land owning groups called Mataqali.

Under the iTaukei Land Act 1905 iTaukei land can only be owned by iTaukei people.[1] However, how iTaukei land has been administered has changed over time. Under the iTaukei Land Trust Act 1940 (Act) all iTaukei land rights are vested in the iTaukei Land Trust Board (Board) and rights in iTaukei land may not be leased, licensed or transferred without the consent from the Board.[2]

What does the Board do?

The Board has the ultimate power to control and administer iTaukei land as it reasonably sees fit within the terms of the Act, for the benefit of landowners.

The Board may only grant a lease (or licence) if the land is not occupied by iTaukei owners or required for their own use by the owners. The maximum term of lease that the Board may grant is 99 years, and for agricultural leases a maximum term of 50 years is prescribed.[3]

The consent of the Board is required for any dealings in iTaukei leases, so if you are sub-leasing land or assigning a lease, where that land is the subject of an iTaukei lease, consent of the Board would be required for any such sub lease or assignment.

What documents do I need to obtain approval?

In order to obtain an approval, firstly you must submit an application in the prescribed form, and pay an application fee which the Board will assess and consult landowners for permission. There are a number of documentary requirements (some which have only recently been introduced in the last few years), which are set out at the bottom of this article.

The application fees are as differ depending on the type of land use and can range from $115.00 for commercial/industrial leases, $575.00 for tourism, and $115 eco-tourism and $57.50 for residential leases. Filing an application takes about 6 weeks to complete however may vary depending on the type of lease your applying for and if all the right requirements are included.

When approved, the Board will issue the lease offer and the tenant is then required to pay the lease fee within six weeks of the approval.

It is also worth noting that:

• other documents may be required depending on the permitted use of the land, for example either an Environmental Impact Report or Projected Cash Flow or a Physical Planning Approval from the Director of Town and Country Planning may be required;

• Agriculture leases have different requirements, and if the land leased is less than a hectare then different conditions may apply;[4]

• if you are a non-Fijian citizen or involved in certain dealings with non-Fijian citizens, additional approvals may be required from, among other regulatory authorities, the Minister of Lands, Investment Fiji, and the Reserve Bank of Fiji may be required as well as additional documentation; and

• iTaukei leases usually contain a provision requiring the lessee to build within a certain period of time. Failure to build within the prescribed time may sometimes lead to revocation of the lease or where the lease is sold without any development, penalties may apply.

• For resort leases, sometimes the lease document would require the lessee to pay royalty payments to landowners on turnover.

What are the risks?

Dealings with a lease in respect of iTaukei land will be void if the correct approvals are not obtained.

The recent decision of Seteo Rasau Cakobau v Sandjunes Management Group Ltd [2019] HBC 41 reinforced this principle. In this case, no consent of the Board was sought before the construction of a resort. The defendant attempted to argue, amongst other arguments, a case of ‘promissory estoppel’ because it had relied on the promise by the plaintiff to transfer the tourism lease to which the defendant had subsequently acted to its detriment.

The Court upheld the principles that any dealings with a lease under the Act required approval from the Board and failure to do so will render such dealings void:

“In the instant case, there was not only an agreement to construct a resort and transfer the lease to the Defendant. There was, in the construction and operation of the resort, performance as well, amounting to a dealing with the land, which dealing is prohibited, null and void in the absence of consent of the iTLTB”

The case serves as a stern reminder about the consequences of failing to obtain all approvals under the Act.

Conclusion

If you are considering leasing or purchasing land in Fiji, it is important to understand the iTaukei land system and that Board approval is required to lease, sub-lease or assign a lease in iTaukei land. When looking at property in Fiji, we recommend you:

• do your due diligence on the land you are intending on purchasing and importantly know what type of land it is;

• if it is iTaukei land, understand the rights under the lease – for example, how many years are left on the term of the lease, what land parcel constitutes the lease and what rights/restrictions might exist under the lease; and

• know what approvals and documents you need as a purchaser and ensure the approvals process is followed to avoid any transaction becoming void.

If you are buying or selling property or land of any type in Fiji or want further information regarding iTaukei land regime, please contact Tomasi Tuitoga on Tomasi.Tuitoga@hanifftuitoga.com.fj

Table of Required Documents

Agricultural Leases and Commercial Leases Requirements

[1] ITaukei Land Act 1905 s 3. [2] ITaukei Land Trust Act 1940 ss 4, 5 & 9. [3] ITaukei Land Trust (Leases and Licences) Regulations 1984, rr 6 & 20. [4] Agriculture Landlord and Tenant Act 1966, s 3.