The Qoliqoli Bill sought to bring about changes to a range of fundamental principles. To understand these changes reference needs to be made to Fiji's history and in particular its colonial history:

The Deed of Cession¹ : The notion of sovereignty

By Article 1 of the Deed of Cession, (10 October 1874)

the possession of and full sovereignty and dominion over the whole of the group of islands in the South Pacific Ocean known as the Fijis ... and over the inhabitants thereof, together with the possession of and sovereignty over the waters adjacent thereto and of and over all ports harbours havens roadsteads rivers estuaries and other waters and all reefs and foreshores within or adjacent thereto

[was ceded to and accepted by]

Her Majesty the Queen of Great Britain and Ireland her heirs and successors, to the intent that .... the said islands and the waters reefs and other places as aforesaid lying within or adjacent thereto may be annexed to and be a possession and dependency of the British Crown.

Notice should be taken of the phrase “possession of and full sovereignty and dominion over the whole” appearing in the first line of the text and the phrase “the possession of and sovereignty over the waters” appearing in the third line of the above extract from Article 1.

The words “and dominion over the whole” are of course missing from the third line. Lawyers tend presume that changes in wording are not accidental but intentional and that some shift in meaning was therefore intended.

Now if “dominion over the whole of the waters” adjacent to Fiji were not ceded to Her Majesty the Queen, did the change in wording mean that “sovereignty over the waters” was ceded to Her Majesty the Queen but not “dominion over the waters” ?

In attempting to answer a question of this nature it is fortunately permissible to refer to the recital which precedes the text contained in the body of the instrument for in this part of the document is usually recorded the reasons which underlie the making of document.

If this is done it will be found that there were five such reasons recorded:

• The first was that there were “subjects of Her Majesty” who had settled in Fiji
• The second was that Cakobau who styled himself “Tui Viti and Vunivalu” and other High Chiefs were desirous of

securing the promotion of civilization and Christianity and of increasing trade and industry within the [Fiji] islands

• The third (and perhaps the most important) reason was that it was -

obviously desirable, in the interests as well of the native as of the white population, that order and good government should be established therein

• Fourthly that

the ...Tui Viti and other high chiefs [had] conjointly and severally requested Her Majesty the Queen of Great Britain and Ireland ... to undertake the government of the [Fiji] islands;

• Fifthly that

in order to the establishment of British government within the said islands the said Tui Viti and other the several high chiefs thereof for themselves and their respective tribes have agreed to cede the possession of and the dominion and sovereignty over the whole of the said islands and over the inhabitants thereof and have requested Her said Majesty to accept such cession,- which cession the said Tui Viti and other high chiefs, relying upon the justice and generosity of Her said Majesty, have determined to tender unconditionally,- and which cession on the part of the said Tui Viti and other high chiefs is witnessed by their execution of these presents and by the formal surrender of the said territory to Her said Majesty;

The history books tell us that prior to the Deed of Cession times were turbulent within Fiji and that in any event Cakobau was in a good deal of strife with the Americans.

So it was that on 10th October 1874 by agreement of the Tui Viti and other chiefs the whole of the territory of Fiji was unconditionally surrendered to Her Majesty the Queen of England.

The document was clearly a submission, among other things, “ the doctrine of tenure” and to what is sometimes called “the Crowns right of imminent desmesne” which doctrines in England prescribed that no land was capable of being held by a subject except of the Crown.

That was made clear by Articles 4 and 5 of the Deed which stated:

4. That the absolute proprietorship of all lands not shown to be now alienated so as to have become bona-fide the property of Europeans or 2other foreigners or not now in the actual use or occupation of some Chief or tribe or not actually required for the probable future support and maintenance of some chief or tribe shall be and is hereby declared to be vested in Her said Majesty her heirs and successors.

 

5. That Her Majesty shall have power, whenever it shall be deemed necessary for public purposes, to take any lands upon payment to the proprietor of a reasonable sum by way of compensation for the deprivation thereof.

But the question remains “did the Crown gain dominion over the sea of the waters of Fiji ?” which has to be answered the negative.

A further examination of the wording will bring about the realization that embedded in the Deed of Cession were the conventions of English common law which insisted that there is a fundamental difference between water and land.

One of the differences is that the Tui Viti could not grant possessory rights over the waters of Fiji because waters could not be possessed and enclosed in the same manner as land. Conversely the Crown could not, in exercise of its right of imminent domain, grant possessory rights to its subjects over the waters of Fiji because waters could not be possessed or enclosed in the same manner as land. Today it would be faced with the same difficulty and there the question should rest but it does not.

Qoilqoli Rights

We are still faced with the question of “who owns the fishing rights?” [the Qoliqoli].

It is known for instance, that in New Zealand the Crown, by Article 2 of the Treaty of Waitangi, undertook to protect Maori fishing rights. So, did the same thing happen in Fiji under the deed of cession? Again the answer must be in the negative. There was merely a promise by the Crown in Article 7

1. that the rights and interests of the said Tui Viti and other high chiefs the ceding parties hereto shall be recognized so far as is and shall be consistent with British Sovereignty and Colonial form of government,
2. that all questions of financial liabilities and engagements shall be carefully scrutinized and dealt with upon principles of justice and sound public policy,
3. that all claims to title to land by whomsoever preferred and all claims to pensions or allowances whether on the part of the said Tui Viti and other high chiefs or of persons now holding office under them or any of them shall in due course be fully investigated and equitably adjusted.

The Native Fisheries Commission

Consonant with the promise contained in Article 7 of the Deed of Cession, but 68 Years after the event, we have the inclusion of Section 14 in the 1942 Fisheries Ordinance, which provision enabled the Minister of Fisheries to appoint a Native Fisheries Commission tasked 

with the duty of ascertaining what customary fishing rights in each province of Fiji are the rightful and hereditary property of native owners, whether of Mataqali or in whatsoever manner or way or by whatsoever divisions or subdivisions of the people the same may be held.²

The Native Fisheries Commission was directed by section 15(1) of the legislation to:

institute inquiries into the title of all customary fishing rights claimed by mataqali or other subdivisions of the people [and] to record in writing the boundaries and situation of such rights together with the names of the respective communities claiming to be the owners thereof.²

The Commission was also given the power,³ with the approval of the Minister for Fijian Affairs, to make its own rules for regulating the procedure to be followed at its hearings and to prescribe forms to be adopted at any such inquiry. The rules so made, exist to day and are set out in the Appendix to this note.

On the conclusion of proceedings to record the ownership of any customary fishing rights, the Commission was obliged to announce its decision to the parties.⁴

The Commission was also under a duty to

cause the description of the boundaries and situation of fishing rights and settled by its inquiries to be entered in a register called the “Register of Native Customary Fishing Rights”⁵

The volumes of the Register, which were to be organized according to the Provinces, were to be sent to the Registrar of Titles who was directed to preserve the Register in the same manner as the Register Crown Grants.8 Errors in the Register were able to be corrected by the Registrar of Titles on receipt of an order for correction signed by the Minister for Fijian Affairs.⁶

Each volume of the Register was to be translated into the Fijian dialect of the province concerned and deposited with the scribe of the Province. Each mataqali or subdivision of people concerned was to be given a copy for public use of customary fishing right which they owned⁷

An appeal system to cater for discontent with decisions of the Commission was also provided by the Ordinance.

Legally the system which I have described remains in existence today and is able to be found in the Fisheries Act (Cap 145) sections 14 to 20. The reality might be something different.

System Degradation 

Any individual now attempting to search for the Register of Native Customary Fishing Rights should anticipate a range of blank looks from staff attending the Titles Office public enquiry counter. If the individual concerned manages to get a senior officer to address his/her query the situation is unlikely to improve. 

The longest serving staff at Titles Office may be able to recall that there was a Register of Native Customary Fishing Rights about the place in the 1970's but are unlikely to be able to say where the Register might be today.

If you trust your Fijian language and know which province should be holding the records a query for information about the location of the office where “the scribe of the Province” is unlikely to be fruitful.

As to location of the office of the Native Fisheries Commission, expect a shrug of the shoulders.

The author of the query will most likely be re-directed to Native Land Trust Board.

The remaining mystery is of course, how did the Native Land Trust Board come to be involved ?

Read more in Part II...

² Now section 14 of the Fisheries Act (Cap 158)

³ Now section 15(1) of the Fisheries Act

⁴ Now section 15(2) of the Fisheries Act

⁵ Now section 16 of the Fisheries Act

⁶ Now section 19(1) of the Fisheries Act

⁷ Now section 19(2) of the Fisheries Act

⁸ See Section 19(3) of the Fisheries Act

⁹ Section 20 of the Fisheries Act

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