Clark Peteru, from Samoa, is an environmental legal adviser at the South Pacific Regional Environment Programme (SPREP).
Customary rights pertain to the way that a society has traditionally lived. In contrast, modern rights, as crystallised in various UN conventions and as adopted in the written constitutions of many Pacific Island Countries (PICs), provide a measure of individual freedoms and entitlements not fully articulated in, and in some cases antithetical to, customary rights. Nevertheless, these two types of rights exist side by side. While at the macro-level the 14 independent PICs function according to the Westminster model of law and government, people still live according to their traditional way of life.
Inevitably, traditional patterns of living are pervaded deeply by global influences. A hybrid lifestyle has developed, which appeals to younger and older generations alike. People are more materially prosperous than at any time previously, are better educated and are either healthier or have access to better health care. The cash economy and liberal thinking have engendered an individualistic streak in people. This has led to an increasing assertion and exercise of individual rights.
As a result, taking Samoa as an example, village control over people’s lives has weakened, although extended family relationships remain strong. People still regard their relationships as more important than property and, for the time being, community relationships as more important than individual rights. Sharing and reciprocity are a fundamental part of island life. Traditional compensation (ceremonial delivery of valued cultural artefacts, coupled with money and goods) for tattooists, traditional house builders and canoe builders is still strong, but the cash component is becoming more dominant. Traditional healers operating for commercial gain are unheard of, whereas it is common for fishermen to take payment.
The bulk of land in almost all PICs remains under customary control. Use, exploitation, transfer, and so on, are determined according to customary rules. So too is conservation. Customary control of land has long been heavily criticised by outsiders as an impediment to development. There is often insufficient capital or incentive for local owners to start up a business venture, and overseas investors seldom commit to a business unless the land is freehold or is secure over the long term. With PICs anxious to increase economic growth there is strong pressure to convert customary land to freehold tenure. Thankfully, there is overwhelmingly resistance to this. Land is more than just earth to Pacific islanders, as it defines their institutions and their identities.
Bioprospecting in PICs has given rise to novel questions regarding the commercial value of biodiversity and associated traditional knowledge. While there will be tabu (holy or sacred) areas and sacred knowledge that will be beyond commercial exploitation, the notion of receiving benefits from biodiversity and associated traditional knowledge has met with general acceptance.
Yet there may be a certain naivety regarding such transactions, and with growing awareness a measure of resistance may develop. In the immediate term, however, the primary focus has been in informing both resource owners and knowledge holders and ensuring that their interests are protected.