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Paper short abstract:

This paper looks at the tensions which arise between customary laws and State laws applying in Melanesia, in the context of governance of natural resources. It puts forwards suggestions for bridging the divide between State and customary approaches.

Paper long abstract:

Many island states in the South Pacific declare the importance of traditional values in their constitutions and most give customary laws a place in the hierarchy of State laws. However, in practice, there are tensions between the two systems particularly in the context of governance of natural resources. The main issues include:

• Where custom conflicts with national or provincial laws it is not always clear which prevails. For example, although customary laws may be theoretically superior, in practice, courts tend to favour common law.

• Where customary laws differ between groups, it is often unclear which law will prevail. In Melanesia, customary laws are not an homogenous body of rules; they differ from place to place.

• There are a number of unresolved issues relating to 'ownership' of resources. For example, in some countries of the region, the status of reefs and foreshore under State law is unclear.

• Resolution of disputes relating to natural resources is also a matter of contention. In some countries decision making has been taken out of the hands of traditional forums and given to the State courts. A large number of factors influence people to go outside the customary system to challenge the customary position in the State courts, particularly where valuable resources are involved.

This paper looks at these issues in the context of Solomon Islands and Vanuatu, and puts forwards suggestions for bridging the divide between State and customary approaches to dealing with natural resources.