Land tenure

The majority of land in Solomon Islands (86%) is held under customary tenure, whilst the remaining 14% is alienated land (Corrin, 2012).  Most forest area is found on customary land.

Alienated land

There is no freehold title in Solomon Islands.  Land can only be held as perpetual estate (restricted to Solomon Islanders), fixed-term estate (not exceeding 75 years), or leasehold (Land and Titles Act, s.112, 113, and Part XI).   Land can only be converted from customary (tribal) land by selling or leasing it to the Commissioner of Lands or a Provincial Assembly (Part V).  

Customary land

The system of customary (tribal) land tenure has been preserved since Independence.  The law provides that customary land is to be occupied, used and disposed of in accordance with current customary usage (s. 239(1), Land and Titles Act).  As there is no system which allows for customary land to be surveyed and registered, it is often very difficult for outsiders to identify land boundaries and to identify who ‘owns’ the customary land. Land disputes are common.

Customary land in Solomon Islands is held communally, by a tribe, which includes a clan or line of descendants.  There may often be no single landowner group.  More often, there are multiple groups which hold multi-layered rights to ownership and use of land and forest (Corrin, 2012 p. 27-28).  

To emphasize the communal nature of land tenure under customary law, the Solomon Islands Law Reform Commission has recently recommended that all legislation dealing with land should be amended to use the term “tribal land” rather than “customary land”, and that existing legislative frameworks be amended to formally recognise tribal ownership of tribal land (SICLRC, 2012 p. 18-20).

Restrictions on transfer and dealing in customary land

There are very strong legal restrictions under the land law which restrict how customary land can be dealt with and disposed of.  Only a Solomon Islander can ‘own’ customary land and interests in customary land (Land and Titles Act , s. 241).  Land (and interests in land) can only be transferred between Solomon Islanders according to custom, and any contract or agreement that purports to transfer land or affect an interest in customary land outside custom (e.g. to a non-Solomon Islander) can be declared void by the courts (ss. 240, 241). 

In the context of REDD+, this provision could restrict the way in which contracts or emission reduction agreements between customary landowners and third parties (such as the government or a foreigner) can be made if the contract/agreement seeks to restrict the manner in which the land can or cannot be used or if the contract/agreement purports to dispose of carbon rights (Corrin 2012:25).  Ordinarily, the granting of timber rights over customary land to a third party would also breach the prohibition on disposing of customary interest in land, but this is permitted because of a specific exemption under the Forest Resources and Timber Utilisation Act (s. 43).

The only way that land or interests in land can be transferred outside custom are through compulsory acquisition by the government for a public purpose (s. 71), or by leasing the land to the Commissioner of Lands or a Provincial Assembly (s. 60), after which it is then registered as a perpetual estate.  Because of the risks to tribal groups of converting customary land tenure, and the time and cost involved, REDD+ activities which rely on this approach are unlikely to be acceptable to customary landowners.

Forest tenure

Where forest is found on customary land it is ‘owned’ in accordance with customary law (s. 239(1), Land and Titles Act ). However under customary law, ownership of land may be separated from the right to use land.  This fragmentation of ownership and use rights has given rise to many disputes and much litigation in the forest sector where the legislative framework for timber use and extraction, the Forest Resources and Timber Utilisation Act, which allows a person (or group) to grant timber rights over land even though they are not the ‘owner’ of the land (see Timber rights agreements below).

Mangroves

Solomon Islands has reported mangrove forests of about 37,700 hectares (FAO 2010:8), although this figure could be as high as 60,200 hectares, making it the second largest area of mangroves in the Pacific after Papua New Guinea (MESCAL 2013:10).

Due to conflicting High Court decisions, it is unclear whether ‘ownership’ of the foreshore area below the high watermark belongs to the Crown (State) or remains under the control of customary landowners (Corrin 2012: 34).  In response to this uncertainty, the Solomon Islands Law Reform Commission undertook an extensive inquiry into the issue, and in 2012 the Commission recommended that the Land and Titles Act be amended to clarify that land between the high water mark up to three nautical miles is in fact tribal land, not government land – a position that would more clearly reflect the current values and customs of the people of Solomon Islands (Solomon Islands Law Reform Commission 2012:17).

The main anthropogenic threats to mangrove ecosystems in Solomon Islands include: overfishing;  overharvesting of mangroves for firewood, housing construction and boats; conversion of land for coastal developments, houses and agriculture; and use of mangrove areas as loading areas or “log ponds” for logging activity (MESCAL 2013:13).  

While Solomon Islands does not have a dedicated legal framework for the protection and management of mangroves, a degree of legal protection is available under the following mechanisms:

• Since 1990, the felling and removal of mangroves from any land for commercial use without a licence has been prohibited under the Forest Resources and Timber Utilisation (Protected Species) Regulations 1990, although this does not appear to have arrested the general decline in mangrove forests over the period 1990 – 2010 (FAO 2010:18).
• Mangrove and tidal areas can be declared as marine protected areas under the new Protected Areas Act 2010, providing strong legal protection against dredging, trawling, land-based pollution, logging and mining (s. 2; and Protected Area Regulations cll. 3, 48-57).
• The Fisheries Act 1998 empowers Provincial Governments to make Ordinances to establish and protect marine reserves and to regulate and prohibit the destruction of mangroves (s. 10).

Legal framework for forestry

The main law regulating forest use in Solomon Islands is the Forest Resources and Timber Utilisation Act [Cap. 40].  Originally designed in the 1960s to facilitate logging on government land, the Act has clearly been inadequate to regulate logging on customary land.    Despite being amended extensively over the past 30 years, the Act is still incomplete and very outdated.  Numerous attempts to repeal and replace it with legislation to enable the sustainable harvesting and management of forests, including an open and transparent process for obtaining landowner consent, have failed. The Act has also been very unpopular, triggering excessive disputes and extensive litigation between customary landowners, administrators and logging companies.

Forest sector planning

There is currently no legal structure for forest sector planning at the national level in Solomon Islands.  The Forest Resources and Timber Utilisation Act [Cap. 40] does not provide for the identification and protection of a national forest reserve or estate.  Nor does the Act contain any legal mechanism for setting and enforcing a sustainable harvest yield. 

Implementation and enforcement

The Forest Resources and Timber Utilisation Act itself contains very limited enforcement provisions.  It is an offence remove forest produce in contravention of the Act (s. 30). Licences and permits may be cancelled or suspended where there is a breach of the Act or the licence or permit conditions (s. 39).  Enforcement officers, forest officers and police officers all have power to search and arrest persons they suspect may have breached the Act (s. 32). 

Despite these powers, poor enforcement of the Act generally has been identified as a key governance issue preventing sustainable management of forest resources in Solomon Islands (UN-REDD Programme 2011:6).  Companies are rarely fined or suspended or face licence cancellations despite generally poor (and sometimes illegal) logging practices.   Communities have reported that police often fail to respond in response to complaints of illegal forest practices as they are considered to be partisan players (Allen et al, 2012:54).

The volume of licences issued (over 300 were issued in 2012) also places strain on the ability of the Ministry of Forestry and Research and the Ministry of Environment Climate Change, Disaster Management and Meteorology to monitor forestry operations effectively, as they have very limited resources (draft National REDD+ Roadmap 2014).  In its review of corruption risks in forestry in the Asia Pacific, Transparency International recently noted that there is an urgent need to increase human resources and operational budgets to monitor different stages of logging operations, including conducting timber inventories, monitoring the declaration of logging volumes and checking export permits, and ensuring sufficient resources (such as fuel and boats) to carry out enforcement and compliance operations (Transparency International 2013:13).

Solomon Islands has had a logging code of practice since 1996, revised in 2002: The Revised Solomon Islands Code of Logging Practice (May 2002) (Code).   The Code is intended to protect environmentally sensitive areas from being logged by prohibiting logging in Protected Areas (including areas that exceed 400 metres above sea level), and in Excluded Areas (including buffer areas near villages and streams).   However the Code allows the Commissioner of Forest s to issue discretionary permits to allow logging above 400 metres (Code, Key Standard No. 1, p. 3).  According to the draft National REDD+ Roadmap 2014, the use of discretionary permits has led to the loss of approximately 16,800ha of forest since 2005.  The Code does not contain provisions requiring the reforestation of logged areas.  The FRTU Act does not expressly refer to the Code, making its legal enforceability unclear.

As forest resources become more depleted in Solomon Islands there are reports of re-entry logging, further diminishing the prospect of forest recovery.  The Protected Areas Act 2010 contains a new legal mechanism that could be used to prevent re-entry logging in order to facilitate the recovery of logged-over areas.  Under this Act, an area which has been the subject of over-exploitation or environmental degradation can qualify for protection as a “closed area” (Protected Area Regulations 2012, cl. 9).