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“Under Two Jurisdictions”: Immigration, Citizenship, and Self-Governance in Cross-Border Community Relocations

  • Jane McAdam
Extract

The governments of Kiribati and Fiji “should make every effort to minimise the difficulties of and inconveniences to this community which finds itself under two jurisdictions.”

Our younger generation have been taught that they also have another home. There are still two homes. That's their roots. That's where they belong.

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Corresponding author
j.mcadam@unsw.edu.au
References
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1. Republic of Kiribati, Report of the Independent Commission of Inquiry Relating to the Banabans (September 1985), para. 94.

2. Interview with male member of the Banaban community, Suva (October 18, 2012).

3. For a similar approach in a different context, see Merry, Sally Engle, “From Law and Colonialism to Law and Globalization,Law and Social Inquiry 28 (2003): 569.

4. See, for example, “Planned Relocations, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future: Report: Sanremo, Italy, 12–14 March 2014” (United Nations High Commissioner for Refugees [UNHCR], Brookings, Georgetown University, 2014) http://reliefweb.int/sites/reliefweb.int/files/resources/54082cc69.pdf (March 25, 2015); Elizabeth Ferris, “Planned Relocations, Disasters and Climate Change: Consolidating Good Practices, Preparing for the Future: Background Document: Sanremo Consultation, 12–14 March 2014” (UNHCR, Brookings, Georgetown University, March 2014) http://www.unhcr.org/53c4d6f99.pdf (March 25, 2015); “Planned Relocations, Disasters, and Environmental Change (including Climate Change)” (UNHCR, Brookings, Georgetown University, Bellagio Consultation, May 18–22, 2015) http://www.brookings.edu/about/projects/idp/planned-relocations (July 28, 2015) (all these documents relate to internal relocations only); McAdam, Jane, “Historical Cross-Border Relocations in the Pacific: Lessons for Planned Relocations in the Context of Climate Change,Journal of Pacific History 49 (2014): 301; McAdam, Jane, “Relocation and Resettlement from Colonisation to Climate Change: The Perennial Solution to ‘Danger Zones,’London Review of International Law 3 (2015): 93; and Cancún Adaptation Framework: “Decision 1/CP.16 – The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention” (2010), para. 14(f) http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf (March 25, 2015). Note also the work of the Nansen Initiative on Disaster-Induced Cross-Border Displacement http://www.nanseninitiative.org (November 2, 2015).

5. See, for example, Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge MA: Harvard University Press, 2010); Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge MA: Harvard University Press, 2007); and Sally Engle Merry and Donald Brenneis, eds., Law and Empire in the Pacific: Fiji and Hawai'i (Santa Fe: School of American Research Press, 2003).

6. See the discussion of such histories and historiography in Akira Iriye, Global and Transnational History: The Past, Present and Future (Basingstoke: Palgrave Macmillan, 2013); David Armitage and Alison Bashford, eds., Pacific Histories: Ocean, Land, People (Basingstoke: Palgrave Macmillan, 2014), especially their “Introduction: The Pacific and Its Histories” and Iriye's chapter “A Pacific Century?”; Tracey Banivanua Mar and Penelope Edmonds, eds., Making Settler Colonial Space: Perspectives on Race, Place and Identity (Basingstoke: Palgrave Macmillan, 2010); and James Belich, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-World, 1783–1939 (Oxford: Oxford University Press, 2009).

7. This is discussed in more detail in McAdam, “Historical Cross-Border Relocations.”

8. It is commonly assumed that sea-level rise will be the trigger. However, the scientific evidence suggests that insufficient fresh water supplies, along with an increase in the intensity and severity of extreme weather events, will render land uninhabitable well before it is inundated by the sea.

9. This article adopts the common practice of using the terms “nationality” and “citizenship” interchangeably, even though they are not strictly synonymous. As Rosas explains, “nationality is a concept primarily of international law for inter-state purposes (eg diplomatic protection), while citizenship is a conglomerate of special political and other rights granted primarily under domestic law and for domestic purposes”: Allan Rosas, “Nationality and Citizenship in a Changing European and World Order,” in Law under Exogenous Influences, ed. Markku Suksi (Turku: Turku Law School, 1994), 34, cited in Laurie Fransman, Fransman's British Nationality Law, 3rd ed. (London: Bloomsbury Professional, 2011) 4.

10. See, for example, “Kiribati to Buy Fiji Land Amid Rising Sea Levels,” ABC News, February 6, 2013 http://www.abc.net.au/news/2013-02-06/an-kiribati-buys-fiji-land-for-food-security/4503472 (March 25, 2015); and “Migration Not a Priority Yet,” Islands Business, July 22, 2013 http://www.islandsbusiness.com/news/fiji/2028/migration-not-a-priority-yet-kiribati/ (March 25, 2015).

11. See, for example, Jane McAdam, Climate Change, Forced Migration, and International Law (Oxford: Oxford University Press, 2012), 148–49; Walter Kälin and Nina Schrepfer, “Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches,” UNHCR Legal and Protection Policy Research Series 2012, UN Doc PPLA/2012/01: 61 http://www.unhcr.org/4f33f1729.pdf (October 30, 2015); and Nansen Initiative on Disaster-Induced Cross-Border Displacement, “Human Mobility, Natural Disasters and Climate Change in the Pacific” (Report from the Nansen Initiative Pacific Regional Consultation, Rarotonga, Cook Islands, May 21–24, 2013), 21 http://www.pacificdisaster.net/pdnadmin/data/original/PRC_2013_Human_mobility.pdf (October 30, 2015).

12. Nansen Initiative, “Human Mobility,” 6, 10, 11, 17.

13. Ibid., 21.

14. See, for example, Annelise Riles, “Law as Object,” and John D Kelly, “Gordon Was No Amateur: Imperial Legal Strategies in the Colonization of Fiji,” in Merry and Brenneis, Law and Empire; John D Kelly and Martha Kaplan, Represented Communities: Fiji and World Decolonization (Chicago: University of Chicago Press, 2001); Fransman, Fransman's British Nationality Law, especially ch. 5–6; and A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), 278–83. The “legal definition of status was a central mechanism in the creation of the colonial and postcolonial social order”: Merry, Sally Engle, “Sex Trafficking and Global Governance in the Context of Pacific Mobility,Law Text Culture 15 (2011): 187, 193.

15. See Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993); and Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press, 2010), 11–12.

16. I thank the anonymous reviewer for this insight. See further, Kelly and Kaplan, Represented Communities, 84.

17. Although Rabi had been alienated for plantation use well before the Banabans acquired the island, there have been renewed tensions in recent years with the original indigenous inhabitants of Rabi, who now reside in Lovonivonu on Taveuni: Katerina M Teaiwa, Consuming Ocean Island: Stories of People and Phosphate from Banaba (Bloomington: Indiana University Press, 2015), 173–75. See also text to note 118. For an interesting theoretical parallel, see Adrian Howkins, “Appropriating Space: Antarctic Imperialism and the Mentality of Settler Colonialism,” in Mar and Edmonds, Making Settler Colonial Space.

18. See, for example, Martin G. Silverman, Disconcerting Issue: Meaning and Struggle in a Resettled Pacific Community (Chicago: University of Chicago Press, 1971); Teresia K. Teaiwa, “Rabi and Kioa: Peripheral Minority Communities in Fiji,” in Fiji in Transition: Research Papers of the Fiji Constitution Review Commission, ed. Brij V. Lal and Tomasi R. Vakatora (Suva: University of the South Pacific, 1997); Teaiwa, Consuming Ocean Island; Edwards, Julia, “Phosphate and Forced Relocation: An Assessment of the Resettlement of the Banabans to Northern Fiji in 1945,Journal of Imperial and Commonwealth History 41 (2013): 783; Richard D. Bedford, “Resettlement: Solution to Economic and Social Problems in the Gilbert and Ellice Islands Colony” (MA diss., University of Auckland, 1967); John Campbell, Michael Goldsmith, and Kanyathu Koshy, Community Relocation as an Option for Adaptation to the Effects of Climate Change and Climate Variability in Pacific Island Countries (PICs) (Asia-Pacific Network for Global Change Research, 2005); John Campbell, “Climate-Induced Community Relocation in the Pacific: The Meaning and Importance of Land,” in Climate Change and Displacement: Multidisciplinary Perspectives, ed. Jane McAdam (Oxford: Hart Publishing, 2010); Connell, John, “Population Resettlement in the Pacific: Lessons from a Hazardous History?,Australian Geographer 43 (2012): 127; Thomas Birk, “Relocation of Reef and Atoll Island Communities as an Adaptation to Climate Change: Learning from Experience in Solomon Islands,” in Climate Change and Human Mobility: Global Challenges to the Social Sciences, ed. Kirsten Hastrup and Karen Fog Olwig (Cambridge: Cambridge University Press, 2012); Wolfgang Kempf, “Translocal Entwinements: Toward a History of Rabi as a Plantation Island in Colonial Fiji” (Research paper, Institut für Ethnologie, Universität Göttingen, 2011) http://webdoc.sub.gwdg.de/pub/mon/2011/kempf.pdf (March 25, 2015); Kempf, Wolfgang and Hermann, Elfriede, “Reconfigurations of Place and Ethnicity: Positionings, Performances and Politics of Relocated Banabans in Fiji,Oceania 75 (2005): 368; and Hermann, Elfriede, “Emotions and the Relevance of Past: Historicity and Ethnicity among the Banabans of Fiji,History and Anthropology 16 (2005): 275.

19. The exceptions are Opeskin, Brian and Tabucanon, Gil Marvel, “The Resettlement of Nauruans in Australia: An Early Case of Failed Environmental Migration,Journal of Pacific History 46 (2011): 337; Tabucanon, Gil Marvel, “The Banaban Resettlement: Implications for Pacific Environmental Migration,Pacific Studies 35 (2012): 343; and McAdam, “Historical Cross-Border Relocations.” This article does not examine attendant legal questions relating to rights over phosphate on Ocean Island, most famously examined in the High Court of England and Wales in Tito v Waddell (No. 2) [1977] Ch 106.

20. All Western Pacific High Commission (WPHC) materials cited in this article come from Great Britain, High Commission for Western Pacific Islands, Western Pacific Archives, 1877–1978, MSS & Archives 2003/1, Special Collections, University of Auckland Library; all Foreign and Commonwealth Office (FCO) items come from The National Archives at Kew in the United Kingdom (hereafter Kew); all folders beginning with F come from the National Archives of Fiji (hereafter Fiji); and all folders beginning with GEIC Secret (referring to Gilbert and Ellice Islands Colony) come from the Kiribati National Archives (hereafter Kiribati).

21. Present-day Kiribati and Tuvalu, since 1979 and 1978 respectively.

22. Later the Pacific Phosphate Company, and then the British Phosphate Commission, which was a consortium of the British, Australian and New Zealand governments.

23. Letter from Chairman of the Pacific Phosphate Company to the Secretary of State, Colonial Office, London (December 31, 1907) para. 3, AU Microfilm 627, 491/1909: Land on Ocean Island, University of Auckland Library. A copy of the agreement is reproduced in Barrie Macdonald, Cinderellas of the Empire: Towards a History of Kiribati and Tuvalu (Suva: University of the South Pacific, 2001), 95–96. For a detailed account of the history and the constitutional position of Ocean Island, see Tito v Waddell (No. 2) [1977] Ch 106.

24. Orders in Council of November 10, 1915 and January 27, 1916.

25. Confidential letter from Arthur Mahaffy, Assistant to the High Commissioner, Ocean Island to the High Commissioner for the Western Pacific, Suva (April 14, 1909) para. 13, AU Microfilm 627, 491/1909: Land on Ocean Island, University of Auckland Library.

26. Ibid., para. 9.

27. McAdam, “Historical Cross-Border Relocations”; Teaiwa, “Rabi and Kioa”; Teaiwa, Consuming Ocean Island; and Tabucanon, “The Banaban Resettlement”.

28. Letter from J. Lambert to the Chairman of the Pacific Phosphate Company (June 5, 1918) AU Microfilm 78–346, 2273/1918: Question of Banaban Removal, University of Auckland Library.

29. Ibid., para. 5.

30. “Ocean Islanders: To Go, or Not to Go? Bad Outlook for Natives,” Sydney Morning Herald, April 13, 1912, cited in Teaiwa, Consuming Ocean Island, 17. Albert Ellis, the man who discovered Ocean Island's rich phosphate supplies, explained: “There can be no civilization without population, no population without food, and no food without phosphate”: Albert Ellis, Phosphates: Why, How and Where? (speech to the Auckland Rotary Club in New Zealand, 1942), cited in Teaiwa, Consuming Ocean Island, xv.

31. Confidential letter from John Quayle Dickson, Resident Commissioner to the High Commissioner for the Western Pacific (December 10, 1909) para. 3, AU Microfilm 627, 491/1909: Land on Ocean Island, University of Auckland Library.

32. Memorandum from H. Vaskess, Secretary, Western Pacific High Commission to His Excellency, “Proposed Settlement of Banabans in Rambi Island,” (September 4, 1944) para. 3 in WPHC 6: CF48/5 vol. II.

33. Letter from Cecil Hunter Rodwell, High Commissioner, to the Secretary of State for the Colonies (March 25, 1919) para. 3, AU Microfilm 78–346, 2273/1918: Question of Banaban Removal, University of Auckland Library.

34. FCO, Comments on Draft Petition of the Banabans to the United Nations (November 1, 1974) 3 in GEIC Secret SG 6/4 vol. II (May 1974): Constitution—Constitutional Position and Future of Ocean Island (Kiribati); see also HC Deb January 23, 1975, vol. 884, col. 2103 (Minister of State for Foreign and Commonwealth Affairs, Mr. David Ennals). Although in land law terms, the Banabans “owned” Rabi and Ocean Island, in international and constitutional law terms, those islands belonged to the Crown; respectively, Fiji (independent from 1970) and the Gilbert and Ellice Islands Colony (for which the government of the United Kingdom was responsible internationally): “Ocean Island: Opinion” (December 14, 1973) 2 in GEIC Secret SG 6/4 vol. I (June 1973 to April 1974) (Kiribati). In the 1968 Phosphate Talks, Lord Shepherd noted the Banabans’ “original possession of the Island containing the phosphate”: “Concluding Statement by the Rt Hon The Lord Shepherd, the Minister of State, Foreign and Commonwealth Office, at Lancaster House on Wednesday, 30 October, 1968,” in FCO, The Ocean Island Phosphates Discussions (October 1968), 25. On the colonial division of land in Fiji, see Banner, Possessing the Pacific, 260–86.

35. File note by Johnson, para. 2 (August 19, 1942) in F 37/269/1: Settlement of Natives of Ocean Islanders [sic] on Rabi Island—Fiji (Fiji).

36. See Henry Evans Maude, “Memorandum on the Future of the Banaban Population of Ocean Island, with Special Relation to Their Lands and Funds” (September 2, 1946) para. 37, in Papers of Henry Evans and Honor Courtney Maude, 1904–99, MSS 0003, Series F, 1.F.9.29, Barr Smith Library, University of Adelaide.

37. These seem to be the accepted figures. However, elsewhere it was recorded that there were 944 people in total (308 men, 275 women, 361 children): Telegram from Acting Resident Commissioner of the Gilbert and Ellice Islands Colony to the High Commissioner (December 8, 1945) para. 2, confirmed in letter from H. Vaskess, Secretary of the Western Pacific High Commission to the Colonial Secretary, Fiji (December 10, 1945) para. 1 in WPHC 6, CF 48/5/2 vol. I: Banabans: Settlement of, in Fiji, 1945–46. There was a small second movement in 1947, when Banaban leaders from Rabi, having returned there to determine whether or not the community would remain in Fiji or go back to Banaba, picked up some Banabans who were still living in the Gilbert Islands: Teaiwa, “Rabi and Kioa,” 134.

38. See McAdam, “Historical Cross-Border Relocations.”

39. Teaiwa, Consuming Ocean Island, 184, noting that most of the Banaban leaders had been Methodist ministers and had drawn upon the biblical story as a parallel.

40. Letter from E.C. Eliot, Resident Commissioner to the High Commissioner (April 2, 1920), AU Microfilm 79–217, 692/1920: Removal of Banabans, University of Auckland Library; Confidential letter from J.C. Barley, Resident Commissioner to His Excellency, the High Commissioner for the Western Pacific (July 15, 1940) in WPHC 6: CF48/5 vol. I: Proposed Purchase of Wakaya as Future Home for, 1940–53. This fact is generally omitted from their own historical accounts: see McAdam, “Historical Cross-Border Relocations,” 308–10, 318, 325. Teaiwa, Consuming Ocean Island, 19 agrees that the archives reveal they were “at times … agents of their own displacement.”

41. Letter from H. Vaskess (Secretary to the High Commission) to the Colonial Secretary (Office of the High Commission for the Western Pacific) (June 29, 1942) para. 2 in F 37/269/1 (Fiji).

42. Ibid., para. 3.

43. FCO, Comments on Draft Petition, 3.

44. Letter from H. Vaskess, Secretary of the Western Pacific High Commission to G.K. Roth (December 5, 1945) para. 8 in WPHC 6: CF 48/5/2 vol. I.

45. Notes of a meeting (October 1945) between the British colonial authority and representatives of the British Phosphate Commission, referred to in HC Deb December 18, 1975, vol. 902, col. 1856 (Sir Bernard Braine). The Banabans were told that “all building and houses are badly damaged and destroyed by the Japanese. They built gun emplacements and pulled down houses for the purpose. They cut down cocoanuts to clear the field of fire”: Minutes of Meeting, Nuku, Rabi (March 19, 1946) 2 in WPHC 6: CF 48/5/2 vol. II; “all the villages and food gardens had been destroyed”: Letter from Vaskess to Roth: (December 5, 1945) para. 8.

46. For details, see McAdam, “Historical Cross-Border Relocations.”

47. HC Deb December 18, 1975, vol. 902, col. 1857 (Sir Bernard Braine), referring (at col. 1856) to notes of a meeting (October 1945) between the British colonial authority and representatives of the British Phosphate Commission.

48. Maude, “Memorandum,” para. 36.

49. The Banabans were permitted to complete immigration forms after their arrival. There was no need for quarantine because the Banabans had already been medically examined prior to departure, and were examined by the medical officer on arrival (who reported that their health “was on the whole very good”. Normal customs procedures were dispensed with “on the understanding that no goods other than personal effects [we]re landed and that the vessel then call[ed] at either Suva or Levuka to complete the necessary Customs formalities.” See Letter from the Secretary for Fijian Affairs to the District Office, Rabi, “Immigration Forms for Banabans,” (December 10, 1945) in F 37/269/1 (Fiji); Memorandum by Lindsay Verrier (Medical Officer Cakau) to the Director of Medical Services, “Immigrant Banabans: Health and Sanitation,” (January 2, 1946) para. 4 in F 37/269/1 (Fiji); see also Letter from the Secretary for Fijian Affairs to Roko Tui Cakaudrove, “Settlement of Banabans on Rabi Island,” (December 10, 1945) para. 2 in F 37/269/1 (Fiji).

50. The elders were allegedly shown photographs of such a place: it was not Rabi, but Levuka, the former capital of Fiji. See McAdam, “Historical Cross-Border Relocations,” 311.

51. Interview with female member of the original relocating group, Suva (October 18, 2012), who was 20 years old when she relocated to Rabi. The Banaban version of events is captured in dance and song: see Teaiwa, Consuming Ocean Island, 178; and Hermann, “Emotions and the Relevance of Past,” 282–85.

52. Interview with Naomi Christopher, Rabi (October 23, 2012).

53. Interview with Tebwebwe Teai, Rabi (October 24, 2012). She was the daughter of Rotan Tito, the first Chairman of the Rabi Council.

54. Interview with Tebora Tewai, a member of the original relocating group, Rabi (October 21, 2012); and interview with Naomi Christopher, Rabi (October 23, 2012).

55. Telegram from Colonial Secretary to McAlpine, Savu Savu (November 18, 1945) para. 1 in WPHC 6: CF 48/5/2 vol. I.

56. FCO, Comments on Draft Petition, 3. See also the descriptions in Pearl Binder, Treasure Islands: The Trials of the Ocean Islanders (London: Blond and Briggs, 1977) 103–5.

57. Minute by the High Commissioner (August 31, 1944) in WPHC 6: CF48/5 vol. II.

58. Memorandum from H. Vaskess, Secretary of the Western Pacific High Commission to His Excellency, “Proposed Settlement of Banabans in Rambi Island,” (September 4 1944) para. 10 in WPHC 6: CF48/5 vol. II.

59. Donald Kennedy, “Outline of Scheme for the Preliminary Settlement of the Banaban People at Rabi, Fiji,” (October 8, 1945) para. 35 in WPHC 6: CF 48/5/2 vol. I.

60. File note from the Colonial Secretary to the Attorney-General of Fiji (November 2, 1945) para. 1 in F 37/269/1 (Fiji).

61. Ibid., para. 1.

62. Ibid., para. 3. Today, visitors to Rabi must seek permission from the Rabi Council.

63. Extract from District Commissioner Northern's diary (November 13, 1945) para. 48 in F 37/269/1 (Fiji).

64. Confidential memorandum from District Commissioner Northern to the Colonial Secretary: “Banabans and Gilbertese on Rabi Island,” (June 15, 1946) para. 3 in F 128/1: Banabans and Gilbertese on Rambi Island—Control of Movements (Fiji).

65. Note from Harold Cooper to the Acting Colonial Secretary (undated but close to June 1946) para. 2, citing the Attorney-General of Fiji in F 128/1 (Fiji). This view was supported by others: Note on behalf of the Colonial Secretary to the Commissioner of Police (July 8, 1946) para. 1 in F 128/1 (Fiji); Note from Henry Evans Maude to the Colonial Secretary (July 15, 1946) para. 1 in F 128/1 (Fiji).

66. Note from Harold Cooper to the Acting Colonial Secretary, para. 3.

67. Note from Henry Evans Maude to the Colonial Secretary, para. 1.

68. Ibid., para. 3, referring to Note on behalf of the Colonial Secretary to the Commissioner of Police, para. 3.

69. Note from Henry Evans Maude to the Colonial Secretary, para. 3.

70. “Banabans in Fiji,” Fiji Times and Herald, August 24, 1946 in WPHC 6: CF 48/5/2 vol. II.

71. Letter from F.G.L. Holland (Administrative Officer, Rambi) to the Secretary to the Western Pacific High Commission (September 19, 1946) in F 128/1 (Fiji).

72. Letter from J.W. Sykes (for the Secretary for Fijian Affairs) to Roko Tui Cakaudrove (October 3, 1946) in F 128/1 (Fiji).

73. Letter from the Secretary for Fijian Affairs to Roko Tui Cakaudrove, “Settlement of Banabans on Rabi Island” (December 10, 1945) para. 5 in F 37/269/1 (Fiji).

74. Teaiwa, Consuming Ocean Island, 173; this was reinforced in my interviews on Rabi. The Banabans are only permitted to fish for subsistence, not commercially. According to Teaiwa, permitting the Banabans to fish at all is often portrayed as a sign of Fiji's generosity and is used as political leverage during elections.

75. Letter from Vaskess to Roth (December 5, 1945) para. 9.

76. Ibid., para. 10. In 2012, the Executive Director of the Rabi Council attributed the Banabans’ decision to remain on Rabi to the fact that “their interests on this island were protected, so they were more reassured that they were able to stay here freely”: Interview with Marlie Rota, Executive Director, Rabi Council of Leaders, Rabi (October 24, 2012).

77. Kennedy, “Outline of Scheme,” para. 22.

78. Ibid., para 23.

79. Letter from H. Vaskess, Secretary of the Western Pacific High Commission to the Colonial Secretary, Fiji, (November 2, 1945) para. 2 in WPHC 6: CF 48/5/2 vol. I.

80. Ibid., para. 3. For draft bill, see document 33a in F 37/269/1 (Fiji).

81. No. 28/1945 (December 27, 1945); Banaban Settlement (Amendment) Ordinance No. 15/1951; Banaban Settlement Ordinance No. 38/1970 (October 8, 1970) (repealed the 1945 Ordinance: s 8); Banaban Settlement (Amendment) Act No. 12/1973 (June 28, 1973) (amended the 1970 Ordinance); Banaban Settlement Act, Cap 123 of 1978 (a consolidated version of the Banaban Settlement Ordinance 1970 and the Amendment Act 1973); Banaban Settlement (Amendment) Act No. 8/1996 (August 28, 1996). The current statute is the Banaban Settlement Act Cap 123 of 1978, as amended by the 1996 statute.

82. Major Donald Kennedy, “Progress Report on Banaban Settlement: 23rd October, 1945 to 20th January, 1946,” para. 10 in WPHC 6: CF 48/5/2 vol. II; and Maude, “Memorandum,” para. 40. The Banaban Settlement Ordinance No. 28 of 1945 did not specify the specified number of councillors: “Subject to the provisions of any regulations made under s 3 of this Ordinance, the composition, procedure and sessions of the Rabi Island Council shall be in accordance with such directions as may be issued from time to time by the administrative officer in charge of Rabi Island” (s 2). Amending regulations issued in 1956 specified that the Council would consist of eight members and an island scribe, with the Chairman to be elected as one of the eight: Banaban (Rabi Island Council) Regulations Cap 104 of 1967 (incorporating amendments from October 31, 1956), regs 2(1), 3(1). These regulations continued to apply after the passage of the 1970 Banaban Settlement Ordinance. The current Regulations (Banaban Council Regulations Cap 123 of 1978) have kept the composition to eight members, specifying that “each of the four communities on Rabi Island, namely the Uma, Buakonikai, Tabwewa and Tabiang communities, shall elect two members to the Council”: reg 3(3). For further discussion of the Banaban Settlement Ordinance (later Act), see Tabucanon, Gil Marvel P., “Social and Cultural Protection for Environmentally Displaced Populations: Banaban Minority Rights in Fiji,International Journal on Minority and Group Rights 21 (2014): 25.

83. Kennedy, “Progress Report,” Appendix 5: Minutes of General Meeting of Banaban Elders, Nuku, January 26, 1946, 1.

84. Teaiwa, “Rabi and Kioa,” 138.

85. Kennedy, “Progress Report,” para. 12–13. I thank the anonymous reviewer who pointed out the significance of this in the context of Fiji's politics at the time. In 1946, vehement arguments for Fijian paramountcy were reaching their height with the Deed of Cession debate in Parliament, and there was a broad reluctance to recognize Indo-Fijian institutions, making the degree of autonomy granted to Rabi particularly noteworthy (see further Kelly and Kaplan, Represented Communities, 84).

86. One interviewee described the Council as being under the umbrella of the Fiji government: “They look after our affairs here. They see that the island that we bought is maintained and … safeguard our interests long term”. Interview with Tiboua Auriaria, Rabi (October 21, 2012).

87. J.L. Joy and A.R.G. Prosser, Report of a Mission to Rambi Island Fiji: August 1967 (London: Ministry of Overseas Development, November 1967), 34, in FCO 32/415 Fiji: Economic Affairs (Internal): Rabi Island: Development Aid For (Kew).

88. Teaiwa, “Rabi and Kioa,” 132; Banaban Settlement Act, Cap 123 of 1978 (as amended by Banaban Settlement (Amendment) Act No. 8/1996) s 5; and Banaban Lands Act, Cap 124 of 1985, s 6. The 1996 constitutional review doubted whether the Rabi Council's purported application of its regulations to non-Banabans (namely Fijians) was lawful: Sir Paul Reeves, Tomasi Rayalu Vakatora and Brij Vilash Lal, The Fiji Islands: Towards a United Future: Report of the Fiji Constitution Review Commission (Suva: Parliament of Fiji, 1996) para. 17.76, 17.78.

89. Interview with Rabi councillor, Suva (October 16, 2012).

90. See Teaiwa, “Rabi and Kioa,” 139ff; Cyril Aidney, Luke Ratuvuki and Taomati Teai, Report of the Committee of Inquiry into the Rabi Council Affairs (Suva: Parliament of Fiji, 1994) cited in Teaiwa, Consuming Ocean Island, 171.

91. “Rabi Island Council Dissolved,” Islands Business, June 27, 2013 http://www.islandsbusiness.com/news/fiji/1605/rabi-island-council-dissolved/ (March 25, 2015). Teaiwa, Consuming Ocean Island, 220 fn 29 says it was “due to corruption and a lack of activity in their administration of island services.”

92. Interview with Aren Baoa, Suva (October 18, 2012).

93. There was an earlier vote in November 1946, in which there was unanimous agreement to remain, but this is omitted from a lot of histories, and the 1947 vote is regarded as the definitive one. See Telegram from Major F.G.L. Holland to the Secretary of the Western Pacific High Commission (November 20, 1946) in WPHC 6: CF 48/5/2 vol. II; Letter from Major Holland (Administrative Officer, Rambi) to the Secretary of the Western Pacific High Commission (December 2, 1946) para. 4 in WPHC 6: CF 48/5/2 vol. II.

94. Resident Commissioner Henry Evans Maude to Acting High Commissioner for the Western Pacific (July 11, 1947) para. 12 in WPHC 9, 48/5/10: Banaban Lands and Funds: Report by Mr Henry Evans Maude, MBE, on future of, 1946–53.

95. Ibid., para. 3.

96. Ibid.

97. See Minute by the High Commissioner (August 31, 1944) in WPHC 6: CF48/5 vol II: “why on earth are we fussing about 50 acres? The pp. read like documents about the Sudeten Germans!”.

98. Based on summary in Tito v Waddell (No. 2) [1977] Ch 106, 190–91; Appendix V to the 1985 review.

99. HC Deb June 11, 1979, vol. 968, col. 154 (Sir Bernard Braine); HL Deb February 19, 1979, vol. 398, col. 1610 (Baroness Elles).

100. Maude, “Memorandum,” para. 44.

101. Banaban Funds Ordinance No. 25/1948 (September 29, 1948); Banaban Funds (Amendment) Ordinance No. 35/1958; Banaban Funds (Amendment) Ordinance No. 9/1961 (April 26, 1961); and Banaban Funds (Repeal) Ordinance No. 36/1970 (October 8, 1970).

102. Banaban Lands Ordinance 1953 No. 30/1953 (November 26, 1953); Banaban Lands Ordinance 1965 No. 31/1965 (July 8, 1965) (repealed the 1953 Ordinance: s 20); Banaban Lands (Amendment) Ordinance No. 37/1970 (October 8, 1970); and Banaban Lands Act Cap 124 of 1985 (which appears to consolidate the 1965 and 1970 Ordinances) and is the statute currently in force.

103. Confidential Report by A.L. Free (Pacific and Indian Ocean Department) on “The Banabans at the Independence of Fiji” (March 25, 1970), Annex XII, para. 1 in FCO 32/610: Development Aid for Rabi Island in Fiji (1970) (Kew).

104. Ocean Island: Opinion (December 14, 1973) 2 in GEIC Secret SG 6/4 vol. I (Kiribati).

105. Letter from Vaskess to Roth (December 5, 1945) para. 13. In a subsequent letter, he suggested that it could be expressed as the High Commissioner holding the title “as part of the assets of the Banaban Provident Fund”: Letter from H. Vaskess, Secretary of the Western Pacific High Commission to the Attorney-General of Fiji (December 11, 1945) para. 5 in WPHC 6: CF 48/5/2 vol. I.

106. Letter from Vaskess to the Attorney-General of Fiji (December 11, 1945) para. 2.

107. Note to the Colonial Secretary from J.H. Vaughan, Attorney-General (December 12, 1945) para. 2 in WPHC 6: CF 48/5/2 vol. I.

108. See Tabucanon, “The Banaban Resettlement,” 359–60. There have been four Constitutions in Fiji: 1970, 1990, 1997, and 2013.

109. 1970 Constitution, s 68(1). Any provision that affected “Fijian land, customs or customary rights” required the support of at least six of the eight members of the Senate appointed by the Governor-General on the advice of the Great Council of Chiefs: s 68(2).

110. 1990 Constitution, s 78(1). This was in response to Fijian concerns that their interests might be adversely affected by the safeguards: Report of the Constitution Review Committee (Suva: Parliament of Fiji, July/August 1987) para. 6.11–6.21. The 1996 Fiji Constitution Review Commission observed that Fiji's separate race-based systems of law “assumed that the communities in question would remain isolated and homogenous.” It argued that as more non-Banabans took up residence on Rabi, “the application of laws on a personal, rather than a territorial, basis will become increasingly problematic”: Report of the Fiji Constitution Review Commission, para. 17.81.

111. 1997 Constitution, s 185(1).

112. Citizens’ Constitutional Forum, An Analysis: 2013 Fiji Government Draft Constitution (March 26, 2013) 20 http://www.c-r.org/sites/c-r.org/files/Fiji_govtDraftconstitution2013_CCF_analysis.pdf (March 25, 2015). The constitutional process itself was vexed, with the government rejecting the draft prepared by the Constitution Commission it had appointed, and instead formulating its own, an act widely regarded as antidemocratic. For a detailed analysis, see Vijay Naidu, Fiji: The Challenges and Opportunities of Diversity (London: Minority Rights Group International, 2013). For an overview of Fiji's ethnic groups, see 8–9.

113. Citizens’ Constitutional Forum, 5.

114. Fijian Government, “Blueprint for a Better Fiji: The 2013 Constitution is Unveiled” (Press Release, August 22, 2013) http://www.fiji.gov.fj/Media-Center/Press-Releases/BLUEPRINT-FOR-A-BETTER-FIJI---THE-2013-CONSTITUTIO.aspx (March 25, 2015).

115. Section 27 deals with compulsory acquisition by the state.

116. Citizens’ Constitutional Forum, 20. Someone involved in the Constitution-making process suggested to me that this particular concern could be a result of careless cutting and pasting.

117. 2013 Constitution, s 28(6). The president of Kiribati has expressed concerns about the apparent dilution of Banaban rights on Rabi under the new Fiji Constitution.

118. Interviews with President Anote Tong, Tarawa (September 11, 2013); Tessie Eria Lambourne, Secretary, Kiribati Ministry of Foreign Affairs and Immigration, Tarawa (September 10, 2013).

119. See, respectively, the Deportation, Immigration British Subjects Ordinance 1962; Fiji Immigration Ordinance 1962. The British noted that they should try to ensure that anyone who did not become a citizen of Fiji (i.e., a Banaban not born on Rabi) could retain the right to residence as a “belonger”: Confidential Report by A.L. Free (Pacific and Indian Ocean Department) on “The Banabans at the Independence of Fiji” (March 25, 1970), Annex XI, para. 3 in FCO 32/610 (Kew). The Fiji government accepted that belongers should be able to obtain Fiji citizenship at independence, and that this should be written into the Constitution: Extract from Committee on Constitutional Affairs (re Fiji Constitutional Conference of May 1970), para (c) in FCO 32/625: Status and Rights of Banabans at Independence of Fiji (Kew). “Belonger” status was a colonial concept that functioned similarly to nationality. It was a legal status automatically acquired by the indigenous population and children born in the territory to others settled there, and conferred entitlements as the right to reside, vote, hold public office, and own land: HL Deb 24 July 2001, vol. 626, col. 1871 (Baroness Amos). Belonger status still exists in a number of British Overseas Territories, such as the British Virgin Islands and Anguilla. The rights that flow from it vary in each country.

120. See, for example, Memorandum from A.L. Free to Miss Emery (January 14, 1970) Annex entitled “Comments on Fiji Citizenship as it Might Affect the Banaban Community” in FCO 32/625 (Kew); and Lord Hope's report on Fiji, para. 13–16 on citizenship based on the Mauritius Constitution, cited in Extract from Introductory Discussion to Fiji Constitutional Conference of May 1970, para. 49 in FCO 32/625 (Kew). For background discussions on the nationality of the Banabans in the context of Fiji's independence, see, generally, FCO 32/625 (Kew).

121. See, generally, FCO 32/625 (Kew).

122. Memorandum from Free to Emery (January 14, 1970) para. 7.

123. Confidential memorandum from E.J. Emery to Mr. Morgan re: “Banaban Citizenship and Fiji Independence” (April 13, 1970) para. 2 in FCO 32/625 (Kew). This referred to a substantial number of Indians in East Africa with United Kingdom citizenship.

124. Memorandum from Free to Emery (January 14, 1970) para. 19.

125. Confidential letter from A.L. Free to Miss Emery, ref HPF 18/5 (February 13, 1970) para. 12 in FCO 32/625 (Kew); Brief for Mr. J.C. Morgan visit to Fiji, March 1970, “The Probable Effect upon the Banabans of Fiji Citizenship Law at Independence” (March 16, 1970) para. 2 in FCO 32/625 (Kew).

126. Memorandum from Free to Emery (January 14, 1970) para. 18–19.

127. Confidential letter from Free to Emery (February 13, 1970) para. 9.

128. “Inter-relationship of Political and Financial Factors” (personal and confidential) 1 in 319/1/13, Part 19: Gilbert and Ellice Island Colony Resettlement of Population: Banabans Rabi (Department of Foreign Affairs) (National Archives of Australia).

129. Confidential, Memorandum by A.L. Free, “Banaban Citizenship” (May 18, 1970), para. 5 in FCO 32/626 Status and Rights of Banabans at Independence of Fiji (Kew).

130. Ibid.

131. Ibid., para. 6.

132. Ibid., para. 7. This concern has been raised in the contemporary context: merely having a right to reside does not protect against expulsion.

133. Memorandum from Free to Emery (January 14, 1970) para. 9.

134. Fiji Constitutional Conference (London, April 1970), “The Effect upon the Banabans of the Fiji Proposed Citizenship Law at Independence”—Draft form in FCO 32/625 (Kew).

135. Fiji Constitutional Conference (London, April 1970), “Banabans and Fiji Independence,” UK Brief No. FCO(70)7 (April 13, 1970) para. 1 in FCO 32/625 (Kew).

136. Memorandum from Free to Emery (January 14, 1970) para. 13.

137. In 1948, and again in the lead-up to Fiji's independence in 1970 and Kiribati's independence in 1979, the Banabans made bids for their own independence: see Tito v Waddell (No. 2) [1977] Ch 106, 192–93. These proposals are examined in depth in a forthcoming article by the author.

138. Memorandum from Free to Emery (January 14, 1970) para. 12.

139. Memorandum by Free (May 18, 1970) para. 2 in FCO 32/626 (Kew).

140. Letter from J.E. Morgan to E.J. Emery, “Position of Banabans after the Independence of Fiji” (March 21, 1970) para. 4 in FCO 32/625 (Kew).

141. Brief for meeting between Lord Shepherd and Banaban representatives (May 19, 1970) in FCO 32/626 (Kew).

142. Fiji Constitutional Conference (London, April 1970), “Banaban Citizenship and Fiji Independence,” UK Brief No. FCO(70)7, Annex, para. 1 in FCO 32/625 (Kew).

143. Brief for Mr. J.C. Morgan visit to Fiji, March 1970, “The Probable Effect upon the Banabans of Fiji Citizenship Law at Independence,” (March 16, 1970) para. 9 in FCO 32/625 (Kew). See further, Kelly and Kaplan, Represented Communities.

144. Confidential telegram from FCO (Owen) to Tarawa on “Banabans: Citizenship” (October 30, 1978) para. 1 in FCO 107/16: Mr. Luard's visit to Kiribati and Fiji and further action (1979) (Kew). It was customary for a person in a newly independent country not to lose United Kingdom and Colonies citizenship if that person, that person's father or that person's paternal grandfather was born in the United Kingdom or a remaining colony. See also draft brief, Lord Shepherd's visit to Fiji, January, 1970, “The Probable Effect upon the Banabans of Fiji Citizenship Law,” para. 4 in FCO 32/625 (Kew).

145. Fiji Citizenship Act 1971, s 16; 1970 Constitution, s 25(e).

146. Brief for Mr. J.C. Morgan visit to Fiji, March 1970, “The Probable Effect upon the Banabans of Fiji Citizenship Law at Independence,” (March 16, 1970) para. 5 in FCO 32/625 (Kew).

147. Citizenship of Fiji Decree 2009, s 14.

148. On citizenship of the United Kingdom and Colonies, see Fransman, Fransman's British Nationality Law, 74–75. This status replaced “British subject status” from January 1, 1949 when the British Nationality Act 1948 entered into force.

149. Fiji Citizenship Act 1971, ss 5, 16.

150. Confidential letter from Free to Emery (February 13, 1970) para. 15.

151. Ibid.

152. Confidential telegram from FCO to Tarawa, para. 3; Memorandum by H.M. Paterson, Nationality and Treaty Department, on “Gilbert Islands: Banaban Community,” (November 9, 1978) para. 2 in FCO 107/16 (Kew). Only 263 people on Rabi in 1976 were born on Ocean Island itself: HC Deb May 24, 1979, vol. 967, col. 1325 (Mr Blaker).

153. Memorandum by Paterson (November 9, 1978) para. 3. The 1976 census recorded that 61% of the approximately 2,400 Banabans living in Fiji had been born there and were, therefore, Fiji citizens by birth: HC Deb May 24, 1979, vol. 967, col. 1322 (Mr. T.H.H. Skeet).

154. Confidential telegram from FCO to Tarawa, para. 3 in FCO 107/16 (Kew); and Memorandum by Paterson (November 9, 1978) para. 2. Only 263 people on Rabi in 1976 were born on Ocean Island itself: HC Deb May 24, 1979, vol. 967, col. 1325 (Mr. Blaker).

155. HC Deb March 23, 1979, vol. 964, col. 319W (Mr. Luard); Confidential, Gilbert Islands Constitutional Conference (London, November 1978), “Citizenship” (UK Brief No. 4xiii) para. 8 in FCO 32/1460 Constitutional Conference: Briefs (1978) (Kew).

156. Fiji Constitutional Conference (London, April 1970), “Banaban Citizenship and Fiji Independence,” UK Brief No. FCO (70)7, Annex (April 15, 1970) para. 1 in FCO 32/625 (Kew).

157. Memorandum from Free to Emery (January 14, 1970) para. 23.

158. HC Deb May 24, 1979, vol. 967, col. 1250 (The Lord Privy Seal, Sir Ian Gilmour).

159. The Ellice Islands separated from the Gilbert Islands in 1975–76, and gained independence in 1978 as Tuvalu. The Gilbert Islands became the independent state of Kiribati in 1979, a process delayed in part by the Banabans’ own bids for independence. See FCO, Report of the Gilbert Islands Constitutional Conference (Cmnd 7446, Misc. No. 1, 1978–79).

160. Telegram from Tarawa to United Kingdom Mission in New York and the FCO (March 23, 1975) para. 1 in GEIC Secret SG 6/4 vol. III (December 21, 1974) (Kiribati). The idea was mooted in a telegram sent the previous day from the United Kingdom Foreign Mission in Suva to the United Kingdom Mission in New York and Tarawa (March 22, 1975) para. 2 in GEIC Secret SG 6/4 vol. III (Kiribati).

161. See “The ‘Fifteen Points’” in Republic of Kiribati, Report of the Independent Commission, 50–51.

162. Ibid., 51.

163. It was also suggested that they had “some idea of benefitting from fisheries rights”: Department of Foreign Affairs (Australia), Meeting with Mr. R.N. Posnett, FCO Adviser on Dependent Territories and Special Envoy on Banaban Affairs (November 10, 1977), 1 in 319/1/13, Part 19 (National Archives of Australia). Others claimed that it was “little more than emotional public relations, designed to assist their efforts to obtain money” from the proceedings launched against the British Phosphate Commissioners and the United Kingdom Attorney-General in the High Court of England and Wales in Tito v Waddell [1975] 3 All ER 997 and Tito v Waddell (No. 2) [1977] Ch 106: “IDC Meeting on Banaban Litigation” (December 19, 1974) para. 10 in 74/7300 (Department of the Prime Minister and Cabinet) (National Archives of Australia).

164. One older interviewee in Kiribati, who was at one time the Commissioner for Banaba, told me: “I think the main reason why they wanted to separate themselves is because of the money.” Interview with Atanraoi Baiteke, Tarawa (September 10, 2013). Similarly, former President Tito argued: “It was all just economics, the economics of the island. I think Fiji at the time, Ratu Mara had an interest to expand his waters into the Kiribati waters. … We knew that he was quiet behind the scene, but hoping that Banaba would become independent and would be part of Fiji.” Interview with Teburoro Tito, former President of Kiribati (1994–2003), Tarawa (September 10, 2013). When I asked 82-year-old Naomi Christopher, Rabi (October 23, 2012), who was part of the original relocation, whether she supported proposals to re-mine Ocean Island, to my surprise, she said yes. It became apparent that the key issue was not mining per se, but rather who would have control over whether mining took place, and who would benefit from the profit: the Banabans or the government of Kiribati.

165. Secret, Council of Ministers, “Negotiations with the Banabans” (presented by the Chief Minister), Memorandum No. 75/75 (May 19, 1975) para. 2 (Kiribati). This document outlines what the Gilbert Islands authority was prepared to give in exchange for the Banabans abandoning a claim to independence.

166. Joint Resolutions (hereafter “Bairiki Resolutions”) approved by the Gilbert Islands government and the Rabi Council of Leaders at a meeting held in Tarawa, Gilbert Islands, from November 1 to 9, 1977, res. 1–2, cited in HC Deb November 24, 1977, vol. 939, col. 880W (Mr. Luard). Res. 8 provided that: “The Gilbert Islands Government and the Rabi Council of Leaders jointly resolved that henceforth Ocean Island be referred to only by is Gilbertese name ‘Banaba’” (at col. 881W).

167. Bairiki Resolutions, para. 11(iii) and (vi), in Papers of Henry Evans and Honor Courtney Maude, 1904–99, MSS 0003, Series F, 1.F.10.1.32, Barr Smith Library, University of Adelaide.

168. Meeting with Mr. R.N. Posnett (November 10, 1977) 1; Confidential communication from London to Wellington, cc'ed to Canberra (November 18, 1977) para. 2 in 319/1/13, Part 19 (National Archives of Australia).

169. Meeting with Mr. R.N. Posnett (November 10, 1977) 1.

170. HC Deb May 24, 1979, vol. 967, col. 1321 (Sir Bernard Braine).

171. Republic of Kiribati, Report of the Independent Commission, para. 30.

172. Report of the Gilbert Islands Constitutional Conference. A constitutional convention had been held in the Gilbert Islands in April/May 1977.

173. Department of Foreign Affairs (Australia), inward cablegram from London (November 22, 1978) para. 2 in 319/1/13, Part 22: UK South Pacific Territories: Gilbert and Ellice Island Colony Resettlement of Population: Banabans Rabi (Department of Foreign Affairs) (National Archives of Australia).

174. FCO, Report of the Gilbert Islands Constitutional Conference, 5. The Gilbert Islands delegation was adamant that separation was totally unacceptable. See also Confidential, Cabinet (Defence and Overseas Policy Committee), Gilbert Islands Independence: Memorandum by the Lord Privy Seal (May 10, 1979) Annex I: ‘Future Status of Banaba, Citizenship and Financial Arrangements’, para. 1 in FCO 107/73 Gilbert Islands Legislation and Bill (1979) (Kew).

175. FCO, Report of the Gilbert Islands Constitutional Conference, 5.

176. Ibid.

177. Ibid., 4.

178. Ibid., 6.

179. Confidential, Gilbert Islands Constitutional Conference (London, November 1978), “Citizenship” (UK Brief No. 4xiii) para 69 in FCO 32/1460 Constitutional Conference: Briefs (1978) (Kew).

180. This is how they were described at the time: HL Deb February 19, 1979, vol. 398, col. 1611 (Baroness Elles). As she explained at col. 1610: “To the best of my knowledge and belief, they must be among the most generous terms ever provided for a minority, whether on the attainment of independence or in any treaty provisions that I have ever come across concerning minority groups.”

181. Republic of Kiribati, Report of the Independent Commission, para. 47.

182. Ibid.; see also HL Deb February 19, 1979, vol. 398, col. 1598 (Minister of State, FCO, Lord Goronwy-Roberts).

183. Constitution of Kiribati, s 29(1)(a): “a person one of whose ancestors was born in Kiribati before 1900.”

184. Constitution of Kiribati, s 23. In Kiribati Cabinet papers, it is expressly stated that this provision would cover a child born on Rabi, with Fiji citizenship, with parents born in Banaba expressly referenced: Secret, “Proposed Citizenship (Amendment) Act and Proposed Citizenship (Amendment) Regulations,” Cabinet Memorandum No. 100/81 (September 8, 1981) (Kiribati).

185. Constitution of Kiribati, s 24. A naturalized citizen who is not of I-Kiribati descent must renounce their other nationality. The 2013 Constitution of Fiji, s 5(4) permits dual nationality. See also Citizenship of Fiji Decree 2009, s 14.

186. Constitution of Kiribati, s 123(1).

187. See, for example HC Deb May 24, 1979, vol. 967, col. 1276 (Sir Bernard Braine); HC Deb June 11, 1979, vol. 968, col. 84 (Mr. Frank Hooley): “This constitution, however, solemnly says that if the specially elected Banaban representative says ‘No, I do not like this,’ that is the end of it. Politically speaking, this is absolute nonsense. This Parliament would never tolerate such a situation and I cannot imagine any Parliament in the world tolerating an arrangement under which one individual—even an elected representative—can effectively prevent a constitutional change which two-thirds of the members of that country's Parliament have decided is necessary and essential.”

188. HL Deb March 15, 1979, vol. 399, cols. 787–88 (Lord Goronwy-Roberts).

189. HC Deb May 24, 1979, vol. 967, col. 1310 (Mr. Roper).

190. Ibid.

191. See section IV D above.

192. In July 1981, Sir Bernard Braine in the House of Commons asked what arrangements were being made to implement that review, and was told only that it was “for the Government of Kiribati to make the necessary arrangements for an independent commission of inquiry to conduct such a review.” The review was conducted some years later and reported on in 1985. See HC Deb July 10, 1981, vol. 8, col. 235W; Republic of Kiribati, Report of the Independent Commission.

193. Constitution of Kiribati, s 119. A Banaban seeking to enter Kiribati is given a letter from the Rabi Council of Leaders stating that that person is of Banaban descent: Interview with Marlie Rota, Executive Director, Rabi Council of Leaders, Rabi (October 24, 2012). It should be clarified that section 19 of the Constitution provides that anyone of “I-Kiribati descent shall have an inalienable right to enter and reside in Kiribati and on Independence Day shall as hereinafter provided, become or have and continue to have thereafter the right to become a citizen of Kiribati.” Chapter IX guarantees should therefore not be read as restricting Banaban movement to Banaba alone: Republic of Kiribati, Report of the Independent Commission, para. 62, read in conjunction with Chapter III of the Constitution.

194. Kiribati Constitution, s 119(4).

195. See also Republic of Kiribati, Report of the Independent Commission, para. 62, read in conjunction with Chapter III of the Constitution.

196. Kiribati Constitution, s 120. In this way, it is a derogation from section 14. See Republic of Kiribati, Report of the Independent Commission, para. 70. At the time of the 1985 Commission of Inquiry, the practice was simply that the Rabi Council representative on Banaba had a veto over who was permitted to enter Banaba, and the Commission was concerned that this power could be used in an “arbitrary or capricious” manner. It therefore recommended that if the movement of non-Banabans were to be limited, this should be set out in legislation (as envisaged by section 120) with a clear definition of the nature of the restrictions, the authorities who can exercise the power to restrict, and the safeguards for those adversely impacted by them: Republic of Kiribati, Report of the Independent Commission, para. 70. The Commission's view was that the Closed District Ordinance (Cap 9), first enacted in 1936 and applied to Banaba in 1975, was void: para. 71.

197. Republic of Kiribati, Report of the Independent Commission, para. 72.

198. Interview with Marlie Rota, Executive Director, Rabi Council of Leaders, Rabi (October 24, 2012).

199. Interview with Kiribati government official, Suva (October 17, 2012).

200. Interview with Teburoro Tito, former President of Kiribati (1994–2003), Tarawa (September 10, 2013).

201. Commonwealth of Australia, Parliamentary Debates, House of Representatives, May 8, 1979 (Andrew Peacock).

202. Republic of Kiribati, Report of the Independent Commission, para. 74.

203. Ibid.

204. Ibid., para 77.

205. Ibid.

206. Constitution of Kiribati, ss 117, 118; see also ss 55, 56(3). Interestingly, this entrenched a provision in the pre-independence Constitution of 1977, when the Rabi Council was given the right to appoint a Banaban representative to the Gilbertese House of Assembly, in addition to the Banaban representative elected by the Banabans living on Ocean Island: HC Deb July 31, 1978, vol. 955, col. 86W (Mr. Luard). During the 1985 constitutional review, it was noted that the Banabans had not taken up this opportunity, but might do so in the future: Republic of Kiribati, Report of the Independent Commission, para. 51.

207. Kiribati Constitution, s 118.

208. Ibid.

209. Ibid., ss 64, 118(3).

210. Ibid., s 117.

211. Ibid., s 125. The reference to “custom” was apparently to indicate that Gilbertese who accompanied the Banabans to Rabi were part of the “Banaban” community: post by Ken Sigrah, “Banaban Identity,” Banaban Voice, March 22, 2009 http://banabanvoice.ning.com/forum/topics/banaban-identity (March 25, 2015). This was also reflected in the definition of “Banaban community” in section 2 of the Banaban Settlement Act in force at the time of Fiji's independence. See further the discussion in section D above. Reviews of the Constitutional Safeguards.

212. Kiribati Constitution, s 117(5).

213. Ibid., s 124.

214. See section IV D above.

215. Ibid., para 59.

216. Ibid., para 58.

217. Section 56(1)(a) states that no one may be elected as a member of Parliament if, “by virtue of his own act, [s/he is] under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”

218. Interview with former nominated member, David Christopher, Rabi (October 23, 2012).

219. See also Kiribati Constitution, ss 55(a), 57(d).

220. Republic of Kiribati, Report of the Independent Commission, para. 53; Kiribati Constitution, s 70.

221. Republic of Kiribati, Report of the Independent Commission, para. 53.

222. Ibid., para. 54.

223. Kiribati Constitution, s 19. Subsequent sections explain the process depending on where a person was born, and rights by virtue of marriage.

224. Kiribati Constitution, ss 19, 23. Most Banabans did not automatically become citizens of Kiribati on independence (see ss 20, 21).

225. Kiribati Constitution, s 28.

226. See also the Kiribati Citizenship Act, Cap 8A of 1998, which provides that rules prohibiting dual citizenship pertain only to citizens who are not of I-Kiribati descent, or if a person obtains a second nationality through marriage: section 8(1). Section 2 of the Act provides that “I-Kiribati descent” means “descent from a person who was born in Kiribati before 1900.” This is intended to ensure that the Banabans can hold dual citizenship.

227. Kiribati Constitution, s 29(1); see Republic of Kiribati, Report of the Independent Commission, para. 43.

228. The relevant “custom” by which identity was established was Banaban custom: Republic of Kiribati, Report of the Independent Commission, para. 92. The Banaban Lands Act contains yet a different definition. For the purposes of that Act (ownership, registration and dealings with land on Rabi), a “member of the Banaban community” means “a descendant of the original indigenous inhabitants of Ocean Island, of the whole or of the half blood, illegitimate or legitimate, or a person who is accepted as a member of the Banaban community in accordance with Banaban custom”: Banaban Lands Act, Cap 124 of 1985, s 2.

229. Banaban Settlement Ordinance No. 38/1970 (October 8, 1970) s 2; Banaban Settlement Act, Cap 123 of 1978 (a consolidated version of the Banaban Settlement Ordinance 1970 and the Amendment Act 1973) s 2.

230. Banaban Settlement (Amendment) Act No. 8/1996 (August 28, 1996) s 2.

231. There was much debate in the 1990s about the change: Interview with Koririnnang Manibwe, Magistrate, Rabi (October 22, 2012).

232. Cited in Teaiwa, Consuming Ocean Island, 171.

233. Ibid. Teresia Teaiwa states that the elders had sought to expand the definition beyond “blood” to include Melanesians on Rabi. This recommendation was adopted by the Aidney Report in 1994, but a bill to broaden the definition in this way was defeated in 1995: Teaiwa, “Rabi and Kioa,” 141, referring to the Aidney report. She notes (at 136) that the Banaban elders (mis)cited the definition in their submission to the 1997 Fiji Constitution Review Commission as “any member of a race indigenous to Micronesia and Melanesia.” They stated that “the Banabans … have since the war closely identified themselves with the Fijian people and causes and have fulfilled their traditional obligations with and through Lalagavesi and Tui Cakau.” According to an anonymous reviewer of this article, Banabans are comfortable with multiple definitions of “community” for different purposes (e.g., “blood” for local elections, but broader for other purposes). On this point, see also Kelly and Kaplan, Represented Communities, 87.

234. Republic of Kiribati, Report of the Independent Commission, para. 93.

235. Ibid., para 94.

236. See Fiji Citizenship Act 1971, s 16; Citizenship of Fiji Decree 2009, s 14; and 2013 Constitution, s 5(4). See also discussion in Republic of Kiribati, Report of the Independent Commission, para. 44.

237. HC Deb May 24, 1979, vol. 967, col. 1325 (Mr. Blaker).

238. Republic of Kiribati, Report of the Independent Commission, para. 44.

239. HC Deb June 11, 1979, vol. 968, col. 155 (Sir Bernard Braine).

240. Ibid., col. 156 (Sir Bernard Braine): “the 1947 agreement guarantees cannot in morality or justice, or in law, be transferred to the new Kiribati Republic, and the House of Commons will be asked to sanction something that is totally dishonourable.”

241. Ibid. (Mr. Roper).

242. HL Deb February 19, 1979, vol. 398, col. 1637 (Lord Goronwy-Roberts).

243. HC Deb June 11, 1979, vol. 968, col. 163 (Mr. Blaker).

244. HL Deb February 19, 1979, vol. 398, col. 1623 (Lord Hylton).

245. Ibid., col. 1624 (Lord Somers).

246. Confidential, Cabinet (Defence and Overseas Policy Committee), Gilbert Islands Independence: Memorandum by the Lord Privy Seal (May 10, 1979) Annex I: “Future Status of Banaba, Citizenship and Financial Arrangements,” para. 2 in FCO 107/73 (Kew).

247. Confidential telegram from FCO (Owen) to Suva, “My IPT: Banaban Citizenship” (October 30, 1978) para. 2 and 3, respectively in FCO 107/16 (Kew).

248. Ibid., para. 3.

249. Republic of Kiribati, Report of the Independent Commission, para. 46.

250. Ibid., para. 44.

251. HL Deb February 19, 1979, vol. 398, col. 1637 (Lord Goronwy-Roberts); Republic of Kiribati, Report of the Independent Commission, para. 53; Confidential telegram from FCO to Suva (October 30, 1978) para. 4.

252. Secret, “Recommendations of the Independent Commission of Inquiry on Banaba,” Cabinet Memorandum No. 67/86 (July 21, 1986) para. 4(i) (Kiribati).

253. Citizenship of Fiji Decree 2009, s 14; “Dual Citizenship … at a Cost,” Indian Weekender, January 17, 2013 http://www.indianweekender.co.nz/Pages/ArticleDetails/14/729/Fiji/Dual-citizenship-at-a-cost (March 25, 2015).

254. Ministry of Information (Fiji), “State Benefits Dual Citizenship” (Press Release, September 26, 2010) http://www.fiji.gov.fj/Media-Center/Press-Releases/State-benefits-dual-citizenship.aspx (March 25, 2015).

255. Interviews with Rabi Councillor, Suva (October 16, 2012); female member of the original relocating group, Suva (October 18, 2012); female member of the Banaban community, Suva (October 18, 2012); male member of Banaban community, Suva (October 18, 2012). Teaiwa also observed this confusion: Teresia K Teaiwa, “Peripheral Visions? Rabi Island in Fiji's General Election,” in Fiji before the Storm: Elections and the Politics of Development, ed. Brij V Lal (Canberra: ANU Epress, 2012), 94.

256. Different reports refer to different figures. “Fiji's Banabans Offered Citizenship,” Radio New Zealand International, January 19, 2005 http://pidp.eastwestcenter.org/pireport/2005/January/01-20-09.htm (January 15, 2015); “Fijians Celebrate 69 Years of Banaban Arrival,” (Press Release, December 15, 2014) http://www.fiji.gov.fj/Media-Center/Press-Releases/FIJIANS-CELEBRATE-69-YEARS-OF-BANABAN-ARRIVAL.aspx (January 15, 2015).

257. “Fiji Citizenship granted to Tuvaluans in Kioa,” Tuvalu News, December 16, 2005 http://www.tuvaluislands.com/news/archived/2005/2005-12-16.htm (January 15, 2015). The fee waiver was said to amount to FJ$1,000,000 in total. Teaiwa records that the fee was FJ$800 per person: Teaiwa, “Peripheral Visions?” 104.

258. Republic of Kiribati, Report of the Independent Commission, para. 34.

259. Ibid., para. 80.

260. Ibid., para. 37. By contrast, there were only 46 people living on Banaba at that time: see 1985 census in Republic of Kiribati Island Report Series, “Banaba,” (rev 2012) 5 http://www.climate.gov.ki/wp-content/uploads/2013/01/19_BANABA-revised-2012.pdf (March 25, 2015).

261. Republic of Kiribati, Report of the Independent Commission, para. 96.

262. Ibid., para. 37.

263. Ibid., para. 39.

264. Ibid., para. 40.

265. Ibid., para. 41.

266. Ibid., para. 95.

267. Ibid., 37–40 (“Summary of Recommendations”).

268. Michael N. Takabwebwe (former Attorney-General of Kiribati), “Kiribati,” 154 referring to the Select Committee of Parliament's Report on the Review of the Constitution http://www.vanuatu.usp.ac.fj/sol_adobe_documents/usp%20only/Pacific%20law/Takabwebwe.pdf (January 10, 2015). The Select Committee travelled through the islands of Kiribati, and also visited Rabi in Fiji.

269. This does not necessarily mean that the minutes contain no references to the provisions, only that they were not among the passages he identified in his perusal of the documents.

270. Translation from Gilbertese of “Minutes of the Convention relating to the Review of the Constitution, 11–19 March 1996,” 398–99, by former President Teburoro Tito.

271. Interview with Teburoro Tito, former President of Kiribati (1994–2003), Tarawa (September 10, 2013).

272. Ibid.

273. Interview with Koririnnang Manibwe, Magistrate, Rabi (October 22, 2012).

274. The amending legislation contained no changes to the Banaban provisions: Constitution (Amendment) Act 1995 (Kiribati) http://www.wipo.int/wipolex/en/text.jsp?file_id=196418 (March 25, 2015). Teaiwa, Consuming Ocean Island, 174 refers to additional constitutional discussions in 2000, when her father John Teaiwa, then Chairman of the Council, explained that “the council had expressed its desire to have both chapters [IX and III] strengthened in order to reflect the friendly relations they were trying to foster between the Banabans and the Kiribati government. In his thinking the Banabans had a unique opportunity to create economic and cultural exchanges with Kiribati, given their dual citizenship.”

275. Interview with Teburoro Tito, former President of Kiribati (1994–2003), Tarawa (September 10, 2013).

276. See, for example, Bauro Vanualailai (Chairman, Rabi Council of Leaders) and Peter Crowley, “Banaban Rehabilitation Project,” Banaban Voice, April 30, 2010 http://banabanvoice.ning.com/forum/topics/banaban-rehabilitation-project (March 25, 2015).

277. Interview with Opposition Leader Tetaua Taitai, Tarawa (September 11, 2013).

278. Of the 295 residents at the last census (2010), 165 were Banabans, 125 were from other outer islands of Kiribati, and five were from other Pacific islands: Republic of Kiribati Island Report Series, “Banaba,” 5.

279. Interview with government official, Tarawa (September 10, 2013). On political tensions, see also Teaiwa, Katerina, “Banaban Island: Paying the Price for Other Peoples’ Development,Indigenous Affairs 1 (2000): 38, 43.

280. Interview with government official, Tarawa (September 10, 2013). Few Banabans are inclined to move to Ocean Island, because services and infrastructure are so limited. There is no phone or internet, no air strip, and no scheduled boat service. The water supply is very precarious and at times the island runs short of food and other supplies: Republic of Kiribati Island Report Series, “Banaba,” 3, 6.

281. Interviews with Kiribati government official, Suva (October 17, 2012); Tessie Eria Lambourne, Tarawa (September 10, 2013).

282. Interview with Aren Baoa, Suva (October 18, 2012).

283. Interview with Naomi Christopher, Rabi (October 23, 2012).

284. “Statement by Tekoti Rotan, Leader of the Banaban Delegation to a meeting with the GEIC Delegation, to discuss the Banaban's [sic] Claim to Seek Independence of Ocean Island from Britain” (Nauru, January 2, 1975) para. 28 in 319/1/13, Part 7: Gilbert and Ellice Islands Colony: Resettlement of Population: Banabans Rabi (Department of Foreign Affairs) (National Archives of Australia).

285. Merry, “Sex Trafficking,” 188, 193, referring also to Merry and Brenneis, Law and Empire, “Introduction.”

286. Teaiwa, “Peripheral Visions?” 109.

287. Interview with Naomi Christopher, Rabi (October 23, 2012); and interview with Tebwebwe Teai, Rabi (October 24, 2012).

288. Interview with Teem Takoto, Rabi (October 22, 2012).

289. Interview with David Christopher, Rabi (October 23, 2012). On the politics of race in Fiji, see Kelly and Kaplan, Represented Communities.

290. Interviews with Banaban member of the Catholic Church, Suva (October 16, 2012); youth, Rabi (October 22, 2012); David Christopher, Rabi (October 23, 2012); Lucian Tuari, Itaia Tuari, and Terikano Takesau, Rabi (October 23, 2012); Marlie Rota, Executive Director, Rabi Council of Leaders, Rabi (October 24, 2012); Tute Touakin, Kioa (October 26, 2012). “Inside our hearts we are Banabans”: interview with Terikano Takesau, Rabi (October 23, 2012). John Teaiwa identified as “a Rabi Islander than an Ocean Island Banaban”: interview with John Teaiwa, Suva (October 17, 2012).

291. Interview with Rabi councillor, Suva (October 16, 2012).

292. Ibid: “My intention—I have talked with the Chairman of the Council—we will try to construct a language whereby we can say that—we can claim that that is our new Banaban language. Interestingly, we will be using the Kiribati language and we will be using the Fijian language, and to construct a language combining the two, maybe. … I said, ‘If I'm using somebody's language, of course I am part of that group.’ So, the intention of maintaining my original identity, I think the best thing was to formulate or just construct a language.” This would not be the first attempt to forge a unique identity. Katerina Teaiwa describes the deliberate, political construction of new “Banaban” songs and dances in the 1960s during the strong push for Banaban independence: Teaiwa, Consuming Ocean Island, 119–20, 142, 167, 177.

293. Interviews with Tiboua Auriaria, Rabi (October 21, 2012); Rabi councillor, Suva (October 16, 2012): “We have been shifted from where our ancestors grew up, and for all these years until now, we are still trying to settle now, even though we have a place to stay.”

294. “The Fijian Government has been very good to us, all this time. They looked after us. We're acquainted too. We speak their language, we embrace their culture and we get along together with them. … But that is different with the Kiribati people. Very different”: Interview with male member of the Banaban community, Suva (October 18, 2012). “The Settlement Act is looked after by the Prime Minister himself, so we have very close relationship with the Fijian Government”: interview with David Christopher, Rabi (October 23, 2012).

295. Teaiwa, “Peripheral Visions?” 93.

296. Interviews with Naomi Christopher, Rabi (October 23, 2012); Bingati Sigrah, Vice Chairman, Rabi Council of Leaders, Rabi (October 24, 2012); Rabi councillor, Suva (October 16, 2012); Tute Touakin, Kioa (October 26, 2012); Lucian Tuari, Itaia Tuari, and Terikano Takesau, Rabi (October 23, 2012). Acknowledgment of historical practice: John Teaiwa, Suva (October 17, 2012); Marlie Rota, Executive Director, Rabi Council of Leaders, Rabi (October 24, 2012); member of the Banaban community, Suva (October 18, 2012); and Tiboua Auriaria, Rabi (October 21, 2012).

297. Letter from Sir Bernard Braine to the Rt Hon James Callaghan MP, Secretary of State for Foreign and Commonwealth Affairs, London (February 10, 1975), 2 in GEIC Secret SG 6/4 vol. III (Kiribati).

298. Connell, “Population Resettlement,” 139. Kempf argues that by recreating their four original villages, the Banabans “transferred spatial structures from their island of origin to their new Fijian island of Rabi; further, that their intention, in so doing, was to underline a claim to ownership of both islands”: Kempf, “Translocal Entwinements,” 27. On Banaban identity, see also Kempf and Hermann, “Reconfigurations of Place.”

299. As Connell, “Population Resettlement,” 139 puts it, “[t]his longing for home distinguishes so much involuntary and collective resettlement from individual and household migration.” As has been noted elsewhere, there is generally a greater loss of social networks where families are dispersed, rather than relocated in groups and social units: Michael M. Cernea, “Risks, Safeguards, and Reconstruction: A Model for Population Displacement and Resettlement,” in Risks and Reconstruction: Experiences of Resettlers and Refugees, eds. Michael M. Cernea and Christopher McDowell (Washington, DC: The World Bank, 2000), 30.

300. Michael D. Lieber, “Conclusion: The Resettled Community and Its Context,” in Exiles and Migrants in Oceania (Honolulu: The University Press of Hawaii, 1977), 360, referring to Alan Howard and Irwin Howard, “Rotumans in Fiji: The Genesis of an Ethnic Group,” in Exiles and Migrants in Oceania, ed. Michael D. Lieber (Honolulu: The University Press of Hawaii, 1977). On the political construction of Banaban identity through dance, see Teaiwa, Katerina M., “Choreographing Difference: The (Body) Politics of Banaban Dance,The Contemporary Pacific 24 (2012): 65, 7889.

301. Teaiwa, Consuming Ocean Island, 185.

302. See Teaiwa, “Peripheral Visions?” 94.

303. Teaiwa, Consuming Ocean Island, 184; see also Merry, “Sex Trafficking,” 189.

304. Interviews with Tessie Eria Lambourne, Tarawa (September 10, 2013); Banaban member of the Catholic Church, Suva (October 16, 2013). Some Banabans say that they are discriminated against in Fiji's scholarship process, with indigenous Fijians taking priority: interview with Terikano Takesau, Rabi (October 23, 2013); and interview with youth, Rabi (October 22, 2012).

305. I-Kiribati citizens over 70 years of age cannot access the pension unless they are resident in Kiribati: “Threats to Relinquish Citizenship a ‘Stunt’,” ABC Radio Australia, March 21, 2012 http://www.radioaustralia.net.au/international/radio/onairhighlights/threats-to-relinquish-citizenship-a-stunt (March 25, 2015).

306. Silverman, Disconcerting Issue, 15.

307. Interview with Tessie Eria Lambourne, Tarawa (September 10, 2013).

308. Republic of Kiribati Island Report Series, “Banaba,” 1. By contrast, in the 1931 and 1947 censuses, it had the highest population of any island in the country (2,607 and 2,060 respectively): 5.

309. Ibid., 4.

310. Interview with Opposition Leader Tetaua Taitai, Tarawa (September 11, 2013).

311. Interviews with President Anote Tong, Tarawa (September 11, 2013); Kiribati government official, Suva (October 17, 2012); Tessie Eria Lambourne, Tarawa (September 10, 2013).

312. Interview with Teburoro Tito, former President of Kiribati (1994–2003), Tarawa (September 10, 2013).

313. Interview with Rabi councillor, Suva (October 16, 2012).

314. See McAdam, “Relocation and Resettlement.”

315. Merry and Brenneis, Law and Empire, 6.

316. See Nansen Initiative on Disaster-Induced Cross-Border Displacement, “Human Mobility”; McAdam, “Historical Cross-Border Relocations,” 305. It has been described by Birk, “Relocation of Reef,” 84 as an “extreme” option that can exacerbate vulnerability.

This research has been funded by an Australian Research Council Future Fellowship (FT110100721). The author thanks Sophie Duxson and Henry Hawthorne for research assistance.

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Law and History Review
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