Higher Ground Initiative: Land Tenure + Social Safeguarding

ACKNOWLEDGEMENTS

Prepared for:

THE GOVERNMENT OF THE REPUBLIC OF NAURU

Department of Climate Change & National Resilience

The Honourable Rennier Gadabu M.P., Minister for Climate Change and National Resilience

Under the leadership & guidance of:

The Ministerial Troika:

The Honorable Martin Hunt M.P.,

The Honorable Rennier Gadabu M.P.,

The Honorable Reagan Aliklik M.P.,

The Higher Ground Initiative Committee:

Marlene Moses

Berilyn Jeremiah

Reagan Moses

Novena Itsimaera

Chitra Jeremiah

Gabrissa Hartman

Yvette Duburiya

Newman Rykers

Dexter Bretchefeld

With support from:

Benedict Joseph Abourke

Chelsa Buramen

Minister for Finance and Sustainable Development

Minister for Climate Change and National Resilience

Minister for Nauru Rehabilitation Corporation

Chair Secretary for Commerce Industry and Environment

Secretary for Climate Change and National Resilience

Secretary for Finance

Secretary for Foreign Affairs and Trade

Secretary for Infrastructure

Secretary for Lands Management

Chair for RONPHOS Corporation

Chair for Nauru Rehabilitation Corporation

Operations Manager, Nauru Rehabilitation Corporation

Operations Manager, RONPHOS Corporation

Prepared by:

METROCOLOGY

Mallory Baches

Demetri Baches

and:

Land Equity International

Kate Rickersey

Kate Fairlie

Dimuna Phiri

Project Director, Strategic Planning

Project Manager, Master Planning

Land Tenure + Social Safeguarding

Managing Director

Land Administration Specialist

Legal & Land Administration Specialist

HIGHER GROUND INITIATIVE LAND PORTION #230

TABLE OF CONTENTS

SECTION 1.0

Initial Land Assessment

SECTION 2.0

Social Safeguards

SECTION 3.0

Supporting Accessible and Equitable Housing in Nauru through Land Tenure Reform and Land Use Planning

SECTION 4.0

Land Tenure Challenges and Options for the Higher Ground Initiative: Workshop Presentation Summary

SECTION 1.0

INITIAL LAND ASSESSMENT

SECTION 1.0

Image

TABLE OF CONTENTS

1 Scope of Work

2 Context of Nauru

2.1 Higher Ground Initiative

2.2 Environmental Policies

2.3 National Sustainable Development Strategy

2.4 Wider project environment

3 Understanding Nauru’s Land Tenure System

3.1 Key land legislation

3.2 Recognised land tenure types

3.3 Customary land ownership in Nauru

3.3.1 Land acquisition

3.3.2 Land ownership fragmentation

4 Understanding Nauru’s Land Administration System and Capacity

4.1 Governance and institutional capacity

4.2 Land disputes and dispute resolution

4.3 Land markets, valuation, and taxation

4.4 Land use, planning and development

4.5 Land information, recording and cadastre

4.6 Surveying and geodetic reference system

4.7 Equipment and training

5 Summary of Key Land Tenure and Administration

Challenges

6 Annexes Annex 1: Wider Donor and Project Environment

Annex 2: Gazette

Acknowledgements

A first draft of this document was drafted following early discussions with representatives from the Nauru Rehabilitation Corporation and Department of Lands and Survey. It drew extensively on past literature and reports documenting and describing Nauruan laws, policies, history and future strategic plans, which have been referenced as appropriate. In particular, Peter MacSporran provided many his papers and submissions (published and unpublished) which documented customary and statutory land processes in Nauru and have greatly informed this document. A workshop was held on 11 November 2021 with members of the Higher Ground Initiative Steering Committee in attendance, and comments from this meeting have been incorporated as appropriate. The document has been reviewed by Kate Rickersey, Renee Chartres and Mallory Baches.

Disclaimer

Notwithstanding the above, this report should be considered a working document. Many more conversations are needed with wider stakeholders across Nauru to ensure this document reflects both the law and current practice.

Acronyms

CBD Convention on Biological Diversity

CIE Department of Commerce, Industry and Environment

GEF Global Environment Facility

GoN Government of Nauru

HGI Higher Ground Initiative

ICT Information and Communication Technologies

NBSAP Nauru’s Biodiversity Strategy and Action Plan (2010)

NEMS National Environmental Strategy

NIEP National Integrated Environment Policy

NRC Nauru Rehabilitation Corporation

NSDS National Sustainable Development Strategy

R2R Ridge – to – Reef

RONAdapt Republic of Nauru Framework for Climate Change Adaptation and Disaster Risk Reduction

RONPHOS Republic of Nauru Phosphate Corporation

RPC Regional Processing Centre

SDG Sustainable Development Goals

SLM-NAP Sustainable Land Management – National Action Plan

SME Small and Medium Enterprise

SPC Pacific Community

1.0 Scope of Work

This report has been developed by Land Equity International under the Vision and Feasibility Master Plan in support of Higher Ground Initiative project, implemented under the leadership of Metrocology. This project represents an early, preparatory step to the Higher Ground Initiative (HGI), which is an ambitious, generational undertaking with the aim to support a strategic, managed migration of people and infrastructure to the higher elevation of Topside. This undertaking comes not only in response to climate changeinduced risks, including sea level rise, but is driven by a need to address the economic, social and environmental challenges that are rapidly undermining the resilience of the Nauruan people. In support of HGI, the Vision and Feasibility consultancy has been contracted to provide an illustrative documentation of the master land use vision countrywide, as well as with specific reference to the government-owned Land Portion #230.

This Initial Assessment of Land Tenure and Land Administration in Nauru sets out the context of land administration and land tenure in Nauru, providing a broad overview of the current status and identifying key opportunities, needs and challenges that exist now, and which may further evolve as Nauru embarks on its ambitious plans under HGI. The central focus for the document is the identification of core elements of the land tenure framework and land administration system that may support or limit either the development and implementation of the master plan, or the development of Land Portion 230.

This document provides the basis for collaboratively developing action plans of short, medium and long-term timeframes with the Government and people of Nauru. It aims to illustrate the land-related foundations for realising the Master Plan and development of Land Portion 230 as well as the broader aims of the HGI. Further work is necessary to elaborate on key policy elements of interest to Nauru (including land conveyancing and land tenure options for pro-poor housing), and to draw on key regional lessons through case studies of Pacific land tenure and land administration experience. Determining the best options for the way forward will depend on a number of decisions to be made around Nauru’s future development, and these are summarized in Section 5. Answering these should not be considered a short-term effort, or one to be undertaken solely by government: effective and sustainable land reform – particularly in the context of customary tenure arrangements - requires extensive cooperation and consultation between government and customary landholders, and the co-development of solutions.

Finally, until there is broader consultation, this document should be considered a work in progress for project team members and Nauruan counterparts to provide input to.

SECTION 1.0 SCOPE OF WORK

2.0 Context of Nauru

Nauru’s scarcity of land is evident from its status as the world’s smallest independent republic – consisting of a geographic area of just 21km2. Completely urbanised, Nauru’s calculated density of around 500 people per square kilometre belies the fact that this population is concentrated on the coastal fringe, with as much as 80% of the island uninhabitable in its current state due to past and present phosphate mining. Access to land and housing are significant challenges, alongside environmental rehabilitation and future livelihoods sustainability.

Situated just 40km south of the equator in the Pacific, Nauru is less susceptible to cyclones and tropical storms than other nations in the region but faces other similar climate change risks: drought and variable rain patterns limiting agriculture and access to potable water, sea level rise potentially leading to coastal inundation and threatening essential infrastructure, marine impacts such as ocean acidification and reduced fish stock that may impact island food security and economy, energy access and ongoing livelihood sustainability. Additional challenges are noted in the Republic of Nauru Framework for Climate Change Adaptation and Disaster Risk Reduction (RONAdapt, p.5):

A scarcity of arable land and freshwater resources, geographic isolation, dependence on imports for meeting basic food and energy needs, environmental degradation and the emergence of chronic health problems all make achieving sustainable development a difficult task, and at the same time also create vulnerability to other stresses, such as those brought on by climate change and disasters.

Compounding these issues, Nauru’s economic resilience is extremely fragile, given the depletion of phosphate resources (and devastation caused by past mining) and the highly concentrated nature of industry and employment in Nauru. External funding sources will likely be needed to fund Nauru’s vision for a sustainable future, and land tenure and administration should be considered in light of Nauru’s ability to support or constrain future economic activities.

SECTION 1.0 CONTEXT OF NAURU

Image credit: Vladimir Lysenko (I.), CC BY-SA 4.0

2.1 Higher Ground Initiative

Nauru’s Higher Ground Initiative provides the backdrop to this Assessment; pitched as a generational undertaking critical to Nauru’s longer-term viability as a nation. HGI proposes a managed migration of people and infrastructure from the country’s low-lying coastal areas to the higher elevation of Topside. Hand in hand with this migration, is the need to address Nauru’s pressing economic and social needs, including employment, overcrowding, education and training. Under the HGI Steering Committee, 11 pillars are proposed to reflect the core needs of Nauru:

 Economic Diversification

 Affordable Green Housing

 Education and Training

 Energy Security

 Food Security

 Water Security

 Public Health

 Environmental Restoration

 Cultural Restoration

 Good Governance

 Low/Zero-Emissions Transport.

Land tenure and administration mechanisms have the potential to support each of these pillars, as shown in Figure 1. The Master Land Use Plan is seen as an early critical step to advance HGI.

Figure 1: Identifying potential for land tenure, administration and spatial information capacity to support the 11 HGI Pillars.

2.2 Environmental Policies

In addition to the HGI, Nauru has produced a wealth of environmental policy documents, both in fulfilment of international commitments as well as in recognition of the significant challenges ahead to rehabilitate mined-out lands, rebuild vital ecosystems and spiritual connections to environment, adapt to climate change impacts, and fundamentally address the sustainability and resilience of the island and its people. Many of these have already highlighted a range of land tenure and administration related issues (see Table 1).

Table 1: Key land tenure and administration related challenges identified in national strategic environmental policies

Key strategic environmental policy documents Land tenure related challenges identified

• Nauru’s Biodiversity Strategy and Action Plan (NBSAP) 2010, although yet to be formally implemented.

• National Environmental Management Strategy (NEMS) and National Environmental Action Plan 1996

• National Integrated Environment Policy (NIEP) 2017, revised 2019

• Framework for Climate Change Adaptation and Disaster Risk Reduction (RONAdapt) 2015

• National Reports to the Convention on Biological Diversity (e.g. 6th National Report of Nauru, Oct 2019).

• Inadequate environmental legislation, with sector ministries not incorporating environmental concerns1

• The need for land tenure reform and the development of an environmental database.

• Extensive land degradation from mining, with slow rehabilitation processes.

• Crowded living conditions, population growth and urbanisation/densification.

• Land use planning constrained by weak policies, administrative capacity, laws and traditional land tenure arrangements.

• Economic vulnerability and instability.

• Inadequate development of infrastructure and services.

This Assessment is not the first study to identify key land tenure and administration challenges and mitigating actions. The National Integrated Environment Policy (NIEP) 2019 summarises a number of key national commitments, and those closest to land tenure issues are summarised in Table 2 below. To the authors knowledge, none of these actions have been completed.

Progress against these commitments, reported in part under the 6th National Report of Nauru to the Convention on Biological Diversity (CBD) (2019), has been slow. The Report particularly notes (Executive Summary, p.6):

The challenges [hindering progress] have been the lack and limited resources (both human and financial) towards the implementation of strategies and supporting community level initiatives. This has been compounded by complex land tenure systems when it comes to establishing conservation areas, and putting in place effective resource management systems.

1 Environmental legislation has since been updated, e.g. Nauru Environmental Management and Climate Change Act 2020 http://ronlaw.gov. nr/nauru_lpms/files/acts/e4673599db6462c935fecb84cae487b0.pdf

SECTION 1.0 ENVIRONMENTAL POLICIES

Table 2: NIEP (2018) national commitments relating to land tenure and administration (abridged).

Theme NIEP Commitment

NIEP Strategy/Target

Performance Indicator

Strengthen policy and legal framework to address national environmental priorities and MEA obligations.

Review of policy and legal framework, to include:

Laws that need review:

• Nauru Survey Act 1961

• Nauru Lands Act 1961

• Public Health Ordinance 1925

• Building Code

• Public Health Building Regulation

Review approved.

CIE, Justice Department, Health, Lands and Survey

Key implementers Environmental

Strengthen planning and enforcement processes for effective development control.

Strengthen planning to implement policies and legislation (effective implementation).

Strengthen development control and EIA processes (in place).

Training on enforcement (yearly)

Prosecution training.

Integrated Land Use Planning Formulate policy for national land use planning. Complete feasibility study programme to survey, register, and map land tenure, map land resources such as water sources and boundaries.

Establish multi-sector consultative body and process for land-use planning e.g. Development and finance Committee.

Formulate national land use plan

Number of policies and legislation implemented. Planned and environmentally sound development. Lands

Sustainable Land Use Management Revise, approve and implement Sustainable Land Management National Action Plan (SLM-NAP)

Land rehabilitation Revise and agree on plans and institutional arrangements for land rehabilitation on topside

Strengthened programme for ongoing consultation and engagement of communities and stakeholders in the implementation. This is in terms of awareness and education.

Programme for coastal erosion assessment and control

Percentage of Nauru with land tenure and boundaries mapped. Resources such as water sources, geology mapped. Land geology, specific land use mapped. Land determined and demarcated.

Approval of consultative body and process. Approved land use plan with clear development zoning.

Lands and Survey Department, Lands Committee, Justice Department, Nauru Rehabilitation Corporation, CIE

Percentage of Nauru under sustainable land management SLM-NAP Lands Committee Lands and Survey NRC, Agriculture.

Plans approved

Level of community and stakeholder engagement. Programme implemented.

NRC, CIE, RONPHOS, Lands Department, Clean and Green, Ministry of Education; and Community Leaders.

Inshore Marine Environment Integrated management of marine and coastal ecosystems through a community-based approach.

Management plan developed for coastal shipwrecks, oil spill, etc.

Number of locally managed marine approach sites established, and network established Plan developed

Invasive and threatened species management Consultation process to establish areas and species of national biodiversity significance Agreed list

Protected areas Secure proposed protected areas - Link to Land Use Policy

Formulate management plan for the Owners Association. proposed protected areas identified in the Nauru BIORAP 2013 with landowner and community engagement.

Formulate management plan wetlands with landowner and community engagement

Explore and establish sustainable funding mechanism for protected area network

Physical climate Strengthen facilities and capacity for monitoring, collection, analysis and provision of climate data and information.

Formulate programme and establish capacity to carry out climate vulnerability assessments for districts and key sectors.

Revise sector and district plans based on vulnerability assessments.

Strengthen Emergency Planning, Preparedness and Response at all levels of Government and communities.

Number of protected areas.

Formalization of wetlands under necessary biodiversity laws.

Funding mechanisms established.

Nauru Fisheries and Marine Resource Authority (NFMRA), CIE, and Community Leaders

CIE, Agriculture, Fisheries, Health (Public Health Quarantine), Justice (Customs), Community Leaders.

CIE (R2R), Fisheries Communities, Lands and Survey, Lands Committee, Community Leaders, and Land Formulate management plan for the Owners Association.

Conservation of historical sites.

Formulate management plan for conservation of historical and culturally significant sites

Level of climate data and information being collected and provided to users.

Number of Vulnerability Assessment reports available with appropriate data. Eg. King Tides data.

Number of plans revised.

Incident and event reviews.

Management plan endorsed

National Emergency Services. DCIE, Department of Civil Aviation, Ports Authority, RONPHOS

SECTION 1.0 ENVIRONMENTAL POLICIES

CIE (R2R) Home Affairs Education

2.3 National Sustainable Development Strategy

Integrating environmental considerations within the wider realm of sustainability, Nauru’s National Sustainable Development Strategy (NSDS) 2019-2030 particularly recognises the potential of land issues to affect the rate of the strategy’s implementation and success: access to land is particularly challenging and can be a long process, given consent requirements, limited recognised land transactions and the complexity and sensitivity of customary land tenure. The report states (p.29) “There is a need to develop a more dynamic legal and regulatory framework which will contribute to mobilizing access to land.”

The report further highlights Nauru’s intent to promote foreign investment, infrastructure provision (targeting transport, energy, water and waste), and strengthen public service capacity. Key relevant goals are identified as:

• Priority Area 4: Cross-Cutting Sectors Cross-Goal 3 states: “A transparent and fair land management system that supports social, economic and private sector development.”

• Priority Area 4: Cross-Goal 4 states: “Sustainable use and management of the environment and natural resources for present and future generations”.

But there are no clear sub-goals, milestones or actions listed beneath this. Earlier versions of the NSDS do go into further detail, but do not appear to directly relate to the goals listed above. NSDS (2009) identified short-term sector goals/milestones including reviewing the land tenure system and its impact upon development and investment; and reviewing the land tenure system to support small and medium enterprise (SME) development and reviewing land reform options. Completion of these activities was not evident.

REPUBLIC OF NAURU

REPUBLIC OF NAURU

Nauru’s NATIONAL SUSTAINABLE DEVELOPMENT STRATEGY 2019-2030

2.4 Wider Project Environment

An overview of the wider development partner and development-partner funded project environment is included at Annex 1, for the purposes of identifying existing initiatives as well as identifying possible wider support for any future initiatives. A preliminary review of past projects demonstrates that there has been limited direct (external) investment in Nauru-led land tenure and land administration reform, despite the criticality of this to many infrastructure, climate change and biodiversity projects. Past projects have included land acquisition and resettlement processes and are emblematic of the need for improving land administration to improve project efficiencies and transparency, as well as reduce project delays.

One upcoming project deserves specific mention: the Ecosystem Restoration and Sustainable Land Management to Improve Livelihoods and Protect Biodiversity in Nauru project, supported by the GEF and intended to commence in 2022. This project is slated to commence in 2022, with GEF providing approximately 15% of total identified project costs. Proposed key project outputs under Project Component 1 address land use planning, development of a web-based geospatial database to support affected stakeholders to receive updates on project progress and development and strengthened capacity of stakeholders to conduct compliance monitoring and enforcement through multi-stakeholder land use planning and management systems.

SECTION 1.0 WIDER PROJECT ENVIRONMENT

Image credit: Vladimir Lysenko (I.), CC BY-SA 4.0

3 Understanding Nauru’s Land Tenure System

Land tenure describes the relationship between people with respect to land (and typically natural resources). It may be defined in law, or by customary practice. Rules of tenure define how rights and interests in property are allocated: including rights to use, control and transfer (buy, sell, gift, pass).

Most land in Nauru (more than 90%) is owned on a customary basis. At least some of the remainder is owned by government, some may be undetermined. One site – Land Portion 230 – is owned by government, and there are a small number of other sites that are recognised as public land or similar (e.g. one known example is reclaimed/’manmade’ land near the Port). The following sections describe the key statutory legislation present in Nauru, recognised land tenure types, and the practice of land tenure and rights recognition under Nauru’s customary system and laws.

Image credit: Lorrie Graham

3.1 Key Land Legislation

The Constitution of Nauru 1968

Unlike many other countries, including other Pacific nations, Nauru’s Constitution does not vest ownership of land in the Nauruan people or government. The only references to land within the document are in relation to the right to mine phosphate (vested in the Republic of Nauru – Art 83) and the payment of royalties from phosphate mining to landowners (Art 63).

There is reference to ‘property’, which is presumably to both real and personal property, though it is defined only as including ‘a right, title or interest in or over property’ (Art 81). The Constitution protects against the deprivation of property (although does not itself preclude compulsory acquisition), and allows for laws addressing taxation, lease, tenancy, mortgage, charge, sale, inheritance (Art 8). Interestingly Art 8(2)(b)(ii) also provides for the taking of possession or acquisition of ‘property of a person adjudged bankrupt or insolvent or of a body corporate in liquidation, for the purpose of administering it for the benefit of the creditors…’. This appears to run counter to the requirement under the Lands Act 1976 (see below) which requires that land can only be owned by Nauruan citizens.

It is worth noting that the Constitution defines citizenship (Part VIII), which provides the basis for restricting ownership to citizens under the Lands Act. It also recognises and protects the rights of all individuals regardless of sex (Part II), in effect recognising the equal rights of women and men (e.g. to land).

Lands Act 1976

The primary law regarding land in Nauru is the Lands Act (1976). The dominant intent of this law is to make provision for the leasing of land for the purposes of the phosphate mining and public purposes, and for the payment of compensation around removal of trees, crops, soil and sand. This law restricts the transfer of land as follows:

• only Nauruan persons may own land;

• the transfer of freehold in any land in Nauru to any non-Nauruan person is prohibited

• All transfers, sales, leases and grants of any estate or interest in land require the consent in writing of the President

• Lease periods are not to exceed 77 years

Notwithstanding the 77-year legislated maximum lease period, anecdotal reports suggest that lands for crucial infrastructure may be leased in perpetuity. It has also been reported that most recent leases have been signed for 20 years or less. 2

The process for leasing land for phosphate mining or other public purpose is specified at Article (5), defining the process as:

• The Minister3 is first to be informed in writing of the lease, easement or other right requirement.

• The Minister’s office notifies the relevant landowners, requesting granting of the lease or other requirement.

• A minimum of 75% of the landowners (in both number and interest in the title) are required to consent to granting the lease or other interest.

• If this minimum is reached but not all landowners respond or sign, then Cabinet must be satisfied of the public purpose and that the refusal/failure of minority owners to consent is unreasonable.

• Once this occurs, the Minister decides the land class and notifies all owners, as reasonably possible, in writing. The Director of Lands and Survey also notifies via Gazette.

• The land class ultimately determines the leaseholder (and any royalty or compensation amounts) payable, which are also defined (rather than negotiated).

The Lands Act 1976 identifies that it is the role of Cabinet to set the land rental rates 2

3 The appropriate Minister is not defined in the Lands Act, but is presumed to be the Minister for Land Management

SECTION 1.0 KEY LAND LEGISLATION

See, e.g., Port Authority of Nauru (2020) Safeguards Due Diligence Report Sustainable and Climate Resilient Connectivity in Nauru – TRTA p.

and any royalties and/or compensation that must be paid for the removal of trees or vegetation, the removal of sand, and the extraction of coral or limestone. These rates are published in the Lands (Review of Land Rental Rates) Order 2014. There is no provision for compulsory acquisition of land in Nauru. As yet, there is no restriction on land development and land use, though there is a recognised need to establish such provisions. There is no limitation to the parcel size 4 or ownership division.

With regards to the minimum 75% of landowners required for consent, this has also been noted as a point of difference between practice and law, with accepted practice for the Department of Lands and Survey to action leases that have obtained 75% of signatures by interest (ie: 75% of shares) OR number of owners (ie: 75% of owners). However, this practice was not recently accepted by the ADB in the Sustainable and Climate Resilient Connectivity Project (Port Development) 5

Lands Committee Act 1956

This law provides for the establishment of a Nauru Lands Committee, consisting of between 5 and 9 members, who must all be Nauruan. The Lands Committee has responsibility for determining questions of ownership or land rights between Nauruans 6, and determining inheritance distributions. All decisions by the Lands Committee must be published by Gazette within 21 days, and appeals may be made to the Supreme Court. The Lands Committee was formerly comprised of elected chiefs and elders from the districts but is now chosen by Cabinet. The process for selecting Lands Committee members is not detailed, and there does not appear to be any formal process for removing persons no longer deemed suitable, nor any defined time period for service.

It is reported the Lands Committee has jurisdiction only to resolve land ownership

4 Department of Lands and Survey records indicate that the smallest portion size recorded at present is 17m2

5 Port Authority of Nauru (2020) Safeguards Due Diligence Report Sustainable and Climate Resilient Connectivity in Nauru – TRTA p. 9

6 The law specifies ‘between Nauruans and Pacific Islanders’, with reference to the superseded law.

disputes, and that any determination of beneficiaries, where required, is subject to Court determination7. Further information and assessment is required to determine the workload of the Committee and the Committee’s effectiveness in transparently and reliably maintaining land ownership records. Given references to land disputes 8, it may be worthwhile to review the level of community trust in the process, and the influence of the Committee structure and mandate on land dispute numbers and resolution times.

KEY ASSESSMENT TAKEAWAYS:

• Nauru’s land governance straddles customary and statutory systems. In preparing to implement HGI, it will be important to review which elements of both systems the country may wish to take forward.

• The Constitution does not reflect the status of land in Nauru. In most countries, the Constitution provides the fundamental principles against which land is governed.

• The Lands Act 1976 needs a comprehensive review and reform: the Act’s focus on phosphate lands is outdated, in many cases it does not reflect practice and the Act is not comprehensive. Reforming the Lands Act 1976 will provide an important basis for managing Land Portion 230, implementing the master plan and ultimately achieving key environmental and sustainability goals.

• Similarly, the Lands Committee Act 1956 straddles customary and statutory processes, and should be reviewed against practice.

• A key question for Nauru is the future planned approach regarding land ownership and leasehold: current practice in both presents a significant barrier to development.

SECTION 1.0 KEY LAND LEGISLATION

7 MacSporran, Unpublished Submission. “Land Ownership. The problem of fractional ownership, the future of topside and related issues. 8 E.g. the NSDS (2009) notes that land disputes have caused infrastructure and development delays.

3.2 Recognised Land Tenure Types

Arguably Nauru’s land tenure is not prescribed in law, but it is recognised that more 90% of lands fall under the customary tenure regime. Compared to public or freehold forms of tenure, land rights under customary tenure are typically not formalised in statutory law but are managed by customary groups and processes linked to underlying social and spiritual belief systems. As noted above, it is unusual that Nauru’s Constitution does not vest the land of Nauru in the Nauruan people – as is the case in many other Pacific nations. Similarly, whilst we know of at least one government-owned land portion – Portion 230 – there is no legal (Constitutional or otherwise) recognition of public land tenue.

Instead, the Lands Act 1976 and related legislation refer to ‘classes’ of land. In the case of the Lands Act three classes of land are recognised, being: phosphate-bearing land, non-phosphate-bearing land, and worked-out phosphate-bearing land. The purposes of these class distinctions are not to specifically define rights or restrictions pertaining to each class, but to determine leasehold payments and possible royalty and/or compensation payments.

The Lands (Review of Land Rental Rates) Order 2014 identifies further land classification types for the purposes of denoting government lease rates. These include:

• Cemetery, Coconut land and Non-commercial residential sites

• Special Public Use Land (Education/Hospital/Fire/Policy)

• Special Commercial (Aerodrome)

• Commercial I Land (Phosphate/Land/Ronphos/RPC/NUC/Hotels/Air Terminal/ Commercial Residential/Government)

• Special Commercial Reserve Land (PI-Permanent Installation Phosphate land)

• Commercial II Land (Sports Complex/Agriculture Commerce)

• Industrial Land (Fisheries/Port Authority)

There is no provision for any form of non-Nauruan ownership of land (including government-owned land and land ownership by companies) in the legislation.

LAND TENURE TYPES

Image credit: Sean Kelleher from Melbourne, Australia, CC BY-SA 2.0

However, there are reports of public land – for example the foreshore area at the Port, considered to be ‘man-made’ (or reclaimed) land (covering 5,963m2)9. It is not clear whether government maintains a record of “public land” (either digitally or paperbased) or how these sites are administered and managed. The issue of land tenure is particularly pertinent to Land Portion 230, as the decision around what land tenure it has when developed will influence the rights, restrictions and responsibilities that individuals accessing land/housing will receive and what they can do with it in the future. At a broader level, the absence of clearly specified land tenures across the rest of Nauru, and the dominance of customary land with few if any restrictions, will likely impact the implementation of the Master plan, and ability for Nauru to deliver on (and finance) environmental and rehabilitation measures.

A further tenure opportunity/challenge that should be mentioned is marine tenure, and its integration with land tenure. Whilst the scope of this assessment does not extend to an extensive review of marine tenure, it is worth noting that this is a significant gap in Nauru’s legal framework, that many other countries in the Pacific have made progress on addressing. There is no record of inshore fisheries management (or government intervention on marine tenure) in Nauru, despite the importance of this resource to local food production. It is not clear from the legislation how far customary land ownership may extend (ie: into coastal waters) but it is understood that all Nauru people are free to fish anywhere on the island. Whilst less formal mechanisms to address issues may have been adopted at district level, there is no overarching body with authority and responsibility – customary or otherwise – to regulate inshore fishing.

“There are no customary regulations, district laws or unwritten understandings on fishing activities, such as size limits, quotas, gear restrictions, use of scuba, or imports.”10

This is quite different to other Pacific Island countries and belies Nauru’s dependence on fishing activities – with data suggesting that as much as 97% of Nauruan households 9 ADB (2020) Sustainable and Climate Resilient Connectivity in Nauru – TRTA Due Diligence Report 10 Vunisea (2007) in FAO (2017) Fishery and Aquaculture Country Profiles The Republic of Nauru Available at https://www.fao.org/fishery/ facp/NRU/en Accessed 21

engage in fishing activities11. At national level there have been attempts to put in place marine-protected areas, and this should be considered as part of wider tenure, economic and environmental reforms.

KEY ASSESSMENT TAKEAWAYS:

• The lack of land (and marine) tenure specification is a clear legislative gap. Land tenure provides the basis for rights, restrictions and responsibilities relating to land, that will underpin the management of Land Portion 230, environmental rehabilitation and conservation efforts, infrastructure and key service development, etc. Building and improving marine tenure will support Nauru’s food security aims and protect this vital resource.

• If Nauru aspires to support SME development, foreign investment and land markets – as appears to be the case – then a review of land ownership policy and practices is necessary.

• As identified above, a key question for Nauru is the future planned approach regarding land ownership and leasehold. In particular, the limited legislative basis for leasehold, and the specifications of leasehold payments by land class both restrict and protect – further review is necessary to understand to what extent these protections are necessary, to what extent they limit land/housing access, and to what extent they cause land conflict and disputes.

11 CoFish (2005) in FAO (2017) Fishery and Aquaculture Country Profiles The Republic of Nauru Available at https://www.fao.org/fishery/ facp/NRU/en Accessed 21 October 2021

SECTION 1.0 RECOGNISED LAND TENURE TYPES

3.3 Customary Land Ownership in Nauru

Australian lawyer Peter MacSporran12 has written extensively about the practice and evolution of customary land ownership in Nauru,13 and the intent here is not to replicate this but to provide key information on current practice as relevant to this review.

Customary land ownership is, by its very nature, typically defined by practice and social acceptance that is handed down and evolved through generations, rather than by any static law. Nauruan customary practice has been significantly impacted by the nation’s colonial legacy, as well as by the uniquely small and dense coastal populations of the island, and the emergence and practice of phosphate mining. Under these influences, Nauru’s customary land (and natural resource) ownership system is recognised as being somewhat uniquely individualised: land is rarely, if ever, owned in common (or under group ownership), but is owned by individuals – although this ownership may be centralised in the elders of a family group. This land is passed down to family members through inheritance, though family members may negotiate with landowners for access and permission to build a home. Land is an important source of income for many people through rental income. Most public buildings are situated on customary lands that are rented to government agencies by customary landowners. Unfortunately, due to mining leases, this saw a rapid erosion of ecological and cultural life for Nauruan’s:

Coupled with the biological and physical rehabilitation of Nauru is the cultural rehabilitation of our people. Our land and culture are united in seamless unified fibre. Our indigenous culture, tied to the land and the surrounding sea, is largely gone, devastated along with the rainforest and the reef.

– Nauru Vision for the Future, Nauru’s Biodiversity Strategy and Action Plan, undated

3.3.1 Land acquisition

With the connection between Nauruan culture and land tarnished by its colonial and phosphate mining legacy, the importance of land in the present day is underscored by its scarcity and its profitability (livelihood representation) through mining and other leasehold. Land transactions (sales and gifts) are possible between Nauruans but appear to be rare and require Presidential consent (in addition to the consent of 75% of owners, as applicable). Leasehold arrangements are perhaps more common - and have the same consent requirements – but remains problematic in terms of land access. Land transactions are documented in the Government Gazette and recorded by the Department of Lands and Survey and Lands Committee.

The primary method of acquiring land in Nauru is through inheritance. Typically, this involves a meeting convened by the Lands Committee with the family and extended kin, wherein the beneficiaries (typically the children) of a deceased person’s shares of land and their estate are determined through group consensus. Where created, a will may also determine inheritance, and this has precedence according to practice.

Individuals may also acquire land for housing by applying to landholding family members to build a house on their lands. To do so, applicants must submit a form (‘housing petition’, see Annex 3), which can be obtained from the Department of Lands and Survey. This form requires a statement of the reasons to build (e.g. residential house or business) and signatures of 75% of landowners/shares. This is then formalised by submitting to the Department of Lands and Survey. Once built on, some ownership of the land is conferred to the applicant, equivalent to the land area built on and approximately 10m around the house14 — but this is not formally documented anywhere. If there is sufficient land, others can approach the landowners to build on the same land and would go through the same process with the same landowners. It does not appear that land is formally subdivided at any stage.

12 A former Senior Legal Officer to the Nauru Supreme Court and Counsel for the Republic of Nauru before the Commission of Inquiry hearings of 1987

13 Particularly MacSporran (1995) Land Ownership and Control in Nauru, Murdoch University Electronic Journal of Law, Available at http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/4371/Title.pdf?sequence=1&isAllowed=y Accessed 20 Oct 2021; as well as other unpublished documents made available by the author.

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14 Pers. comm. 2021 with a representative from NRC.

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CUSTOMARY LAND OWNERSHIP IN NAURU

3.3.2 Land ownership fragmentation

Administratively, Nauru is divided into some 5000 land portions. Accepted inheritance practices since the 1950s, whereby immediate descendants typically each receive an interest in the inherited land portion, has led to increasing land fragmentation. It is common for Nauruans to have shares in many land portions on the island due to the process of inheritance. This presents a clear administrative challenge, in terms of recording ownership, distributing lease payments and royalties, and in managing leasehold consent processes. The extent of the challenge is not yet known, but the complexity can be understood from past Gazettes (see Annex 2) and past projects - for example the case of the new Port, where some 779 owners needed to be contacted regarding the leasing of 14 Land Portions, taking as much as a year, if not longer, to finalise consent (Figure 2 describes this in further detail). This example is indicative of the challenges Nauru faces to develop critical new infrastructure.

Figure 2: Example of land ownership fragmentation and the complexity it creates.

Land ownership fragmentation example – Sustainable and Climate Resilient Connectivity (SCRC) in Nauru (Port Development) Project

For this Port Development project, three land portions were already leased by government for the Port, and an additional four leases were sought. The process commenced in 2017 (due to older leases incorrectly listing the purpose). The process of landowner identification, negotiations, lease preparation and signing was reported as starting January 2018 and concluding by December 2018 (presumably taking the full 12 months). Each of the seven land portions range in size from 778m2 to 4040m2, and each is owned by between 34 and 122 owners (totalling 464 total owners – though these may be overlapping – and 16,830m2). An audit of the project revealed that whilst 75% of signatures were received for all lots by interest, two lots had not achieved the 75% figure by interest – further elongating the time required to achieve consent.

A further 7 land portions were identified as necessary for the construction contractor camp, and for additional construction space, requiring a further 349 landowners to be contacted for consent.

Land leases are facilitated by the Department of Finance, which has established a holding account for undisbursed rental payments which may remain unpaid due to individuals not having provided a valid bank account, living overseas, or other reason.

Similar instances of land ownership fragmentation and cross-ownership can be seen in the Cook Islands and New Zealand. These issues similarly stem from an equal inheritance practice, with all children inheriting equal shares in the registered lands of their parents. As a result, small plots of land may have hundreds of thousands of owners, and individuals may have interests in a large number of land plots. Ever increasing dilution of ownership in both countries has led to obsolete land records (as people in both countries fail to update the registry).15

15 Commonwealth of Australia (2008) Making Land Work: Volume 1. Reconciling customary land and development in the Pacific. Available at https://www.dfat.gov.au/sites/default/files/MLW_VolumeOne_Bookmarked.pdf Accessed 30 October 2021

SECTION 1.0 CUSTOMARY LAND OWNERSHIP IN NAURU

This poses a number of challenges beyond the obvious administrative ones:

• Customary tenure regimes and traditional practices have often seen rights to land as contingent on residence and participation in the community. Equal inheritance typically displaces these values, limiting the flexibility and effectiveness of communities in allocating land rights and managing land.

• Highly fragmented land ownership, by diluting land ownership, creates a disincentive for individuals to consolidate land ownership. Smaller shares in land are worth less, and as the number of owners increase so too does the cost and effort required to consolidate ownership.

• Fragmented land ownership further increases the challenge of community consultation and increases the likelihood of absentee owners.

• Absentee owners can disincentivise property and building improvements and increases the challenge of environmental protection and conservation

This is not to say that there are only negatives. For indigenous peoples that value collective ownership of land, the practice of equal inheritance and a ‘shares system’ in land provides one way of facilitating customary tenure within a freehold regime (e.g. the Maori in New Zealand- https://www.tupu.nz/en/tuhono/about-maori-land-in-newzealand/how-maori-land-ownership-works-today ).

LAND OWNERSHIP IN NAURU

Image credit: DFAT photo library

4 Understanding Nauru’s Land Administration System and Capacity

KEY ASSESSMENT TAKEAWAYS:

 Current land acquisition practice is restrictive, likely contributes to land/housing inaccessibility and un-affordability, and limits (as well as increases the cost of) government and corporate access to land. Nauru’s future direction in terms of opening up land ownership and leasing should be discussed in light of the demands of the HGI and other initiatives.

 More specifically, in Nauru there is a need for the processes and mechanisms for land acquisition to be clearly documented, either in the Lands Act (revision) or accompanying regulations. Where statutory laws exist, there should not be considerable difference between practice and law.

 To achieve a future vision of land and housing accessibility for all, there is a need to develop a housing plan/strategy that combines assessment of available land and housing needs. The extent to which existing land ownership, leasing and acquisition processes might limit implementation of such a strategy should be considered.

 Land inheritance, ownership fragmentation and subdivision practices should all be reviewed, with particular reference to impacts on future infrastructure development, environmental rehabilitation and conservation and the master planning process. This will require wide and extensive consultation and decision-making participation to ensure that decisions reflect the views of all community members. Closely linked with this, is a discussion around the extent to which Nauru wishes to maintain a dual customary and statutory tenure system.

Image credit: Vladimir Lysenko (I.), CC BY-SA 4.0

4.1 Governance and Institutional Capacity

Land administration operationalises land tenure, by recording and disseminating information around land (and associated resource) rights and use, enforcing and protecting legal or customary rules as appropriate, and implementing processes of land management, land use and spatial planning, land development regulations and land value/taxation as appropriate.

The key relevant departments/authorities in relation to land have been identified as:

• Department of Lands and Survey responsible for Lands Act 1976, land portion boundaries, surveying activities and land tenure/land management reform activities.

• Lands Committee responsible for maintaining ownership lists and determining ownership and other rights to land.

• Department of Commerce, Industry and Environment (CIE) responsible for environmental regulation.

• Department of Judiciary/Supreme Court where objections to Lands Committee are escalated.

• Nauru Rehabilitation Corporation, a state-owned enterprise established by the Nauru Rehabilitation Corporation Act 1997 with the primary mission to rehabilitate worked out phosphate lands. NRC is the lead implementer of the HGI, and will presumably be the lead agency managing Land Portion 230.

• Department of ICT, may play a role in supporting any future land information system.

This review of land administration institutions and capacity will focus on the Department of Lands and Survey and Lands Committee.

Information from the Department of Lands and Survey suggests that there are currently approximately 30 staff (no gender breakdown was obtained). An organisational chart was made available and is provided in Annex 3. In the Survey division, it was reported that there are 3 surveyors, though only one has been trained internationally. Significant gaps in terms of survey capacity were noted to include no one trained or able to use the geographic information system (GIS), limited mathematical ability (particularly to support the conversion of data, processing of survey data where not routine, and to support data collection and analysis for environmental monitoring (for example, for climate change). In the organisational chart, there also appear to be several gaps on the land registration side.

Key activities undertaken by the Department include:

• Ronwan payments: collecting royalty and leasehold payments for phosphate mining

• RPC payments: collecting leasehold payments for the refugee processing facility

• Housing petitions: a surveyor is needed to show landowners where a land parcel is located, it’s boundaries and the proposed building boundaries when permission is sought from landowners to build on land. Department of Lands and Survey also facilitates the listing of consent with the Lands Committee. Demand is identified as ~5 requests per week.

• Address queries: e.g. around building encroachments, boundaries, portion listing for corporations etc.; estimated at 6 per day.

• Undertake land surveys: e.g. surveys for land transfer (circa 10 per year), surveys for undetermined land (very few, none in 2019), surveys on topside (rarely, e.g. for development – such as for ADB solar farm).

• Other data collection: e.g. for SPC/CIE to analyse for e.g. beach profiling, climate change

• Identify available land for new cemeteries

• Daily work in assisting the Nauru Lands Committee

SECTION 1.0 GOVERNANCE AND INSTITUTIONAL CAPACITY

Regarding survey work specifically, the following was identified as core activities:

• New surveys (none in 2019)

• Redefinition surveys: averaging 6/month, dealing with the clarification of boundaries in disputes, encroachments for housing

• Detail surveys: averaging 2/month, clarifying areas to be developed or to be utilised for agreed purposes

• Land Determination: on request from Lands Committee, (none in 2019)

• Computation of coordinates: conversion of boundary data from imperial coordinates to metric coordinates. Approx. 30-40% complete.

A schedule of fees was provided, and is also included in Annex 3.

As identified above, Lands Committee members are selected by Cabinet, with between 5-9 serving at any one time. Members of the Committee hold office ‘at the pleasure of Cabinet’, and hence there is no defined time period for their service . The core responsibility for the Lands Committee is to confirm ownership and rights to land. Additional responsibilities may include16:

• Amendments to the list of landowners passed on to beneficiaries.

• Handle family disputes on land issues

• Handle family agreement on terms of land ownership

• Provide documentation and updates on all lands

• Take minutes of meetings held in their conference with landowners

• Record the shares to each landowner for land portions from original shares to the beneficiaries.

• Gazette all amended landowner list with shares

• Identifying and providing land shares to beneficiaries after the passing (death) of principal landowners or providing a will written by principal landowners for a particular beneficiary.

For the purposes of this assessment, a meeting with the Lands Committee has not yet been held. Questions that remain include:

• What information the Lands Committee is responsible for, how it is maintained, and is it up to date?

• Is there any duplication between the information that Department of Lands and Survey and the Lands Committee maintain? It appears that the Lands Committee is primarily responsible for land ownership information, whilst the Department has responsibility for the spatial data (land portion boundaries, building boundaries etc.) – but that the Department may also record ownership information, as known.

• The extent of synchronisation between Lands Committee and the Department Lands and Survey land portion information – are both up to date? Are there any conflicts between information?

• The extent of the Lands Committee workload.

• What is the process for Lands Committee members selection and departure?

• Is there an interest in further documenting the Lands Committee role and processes, to improve transparency and facilitate smoother land dispute resolution processes?

Linking to the Lands Committee role is that of the Judiciary to which disputes are escalated. No meeting has yet been held with a Court/Judiciary representative: it would be worthwhile to know the number of land disputes cases that come before the court, typical timeframes for resolving land disputes via the court system, and the core themes of land disputes.

4.2 Land Disputes and Dispute Resolution

KEY ASSESSMENT TAKEAWAYS:

• Key institutional organisational charts, responsibilities and processes – if they do not already exist – should be developed to improve efficiency and cooperation.

• There appears to be a significant capacity challenge, in terms of technically-skilled/ qualified staff as well as infrastructure.

• Leasehold payments and registration likely represent a significant workload and administrative burden for the Department, and could likely be streamlined with improved data, processes and systems. Boundary determinations and data digitisation/ conversion also represent a significant workload that could likely be alleviated through a one-off systematic process (with external support).

• The Department/Government may wish to review the fee schedule and increase fees in some circumstances, in particular where recipients are monetarily benefiting from the service.

• Better/streamlined data cooperation between the Department and Lands Committee would likely reduce the workloads of both and improve efficiencies whilst addressing dispute resolution.

• Further review of the Lands Committee role, workload, transparency, foundations in customary practice/statutory law and processes is recommended. Comparisons with regional bodies may support this review.

Land disputes may arise where one or more individuals disagree with a Lands Committee determination (e.g. arising from inheritance or other request for determination). They may also arise in relation to boundary demarcation or building encroachment. Land disputes are elevated to the Supreme Court.

The process for addressing land-related disputes was reported as17:

i. Landowners/party submit complaint to Lands Committee

ii. Lands Committee does research on said land

iii. Notify landowners of their findings

iv. If agreed by all parties involved, then resolution will be recorded and stamped with the Lands Committee seal and submitted to Department of Lands and Survey for further processing (e.g. recording of shares, land boundary information, etc.).

v. If it could not be settled within the Lands Committee, the matter will be taken to the Supreme Court. The results will be submitted to Lands Committee and Department of Lands and Survey for recording.

Further information is required to understand the extent to which land disputes are a significant problem in Nauru. A list of pending land appeal cases in the Supreme Court was obtained, with 19 cases showing, dating back to 2014. It is understood that land disputes are perceived as a challenge impeding development. Land disputes are unlikely to impact Land Portion 230 in the short-term, but an accepted and ideally expedited process for dispute resolution will be necessary into the future. Land disputes are likely to be much more significant to the master planning and wider strategic initiatives of Nauru.

17 Drawn from a written response to questions facilitated by NRC representatives.

SECTION 1.0 LAND DISPUTES AND DISPUTE RESOLUTION

4.3 Land Markets, Valuation, and Taxation

KEY ASSESSMENT TAKEAWAYS:

• Further review of dispute resolution processes and the existence of any backlog is recommended, to determine the key drivers of land disputes and identify any opportunities to more simply and efficiently address.

• If land disputes are a significant challenge, this will pose a constraint to future development and investment.

• For transparency, dispute resolution processes should be well documented, and in many cases enshrined in law.

• Wider consultation may be necessary to determine the level of public understanding of and trust in dispute resolution processes.

Nauru has a very limited land market: as identified above, land can only be bought/ sold/gifted between Nauruan citizens and it is illegal for foreign individuals and for companies to own land.

There is a significant leasehold market, where land is leased from landowners for both public or private purposes. Both instances require consent from 75% of owners (both in terms of number of landowners and share amounts). Rental payments for land portions leased for public purposes are defined under the Lands (Review of Land Rental Rates) Order 2014. Rental payments for private leasehold are understood to be according to negotiation. Leasehold is the main avenue for companies and foreign individuals/ investors to access land/buildings, but it is understood to be a difficult market – the Lands Act only specifies the leasing of land for public purposes (including mining Phosphate) – which presumably limits formal leasing to government actors. There are reports of either more informal arrangements, or of government sub-leasing – for example, the ADB Solar Due Diligence Report noted a point of contention, where NRC has in the past leased land from private Nauruans at the government rate according

to law, but then sub-leased the land to the private sector at a profit.18 Similarly, all of Australia’s refugees who remain in Nauru are living in the Nauruan community, and presumably have had leases facilitated by the Government of Nauru.

The above has several implications for Land Portion 230, the master planning process and wider initiatives. The limited coverage of leasehold tenures in the Lands Act 1956 presents a barrier to future investment, constrains government access to land for infrastructure and rehabilitation (through both access and cost) and arguably significantly contributes to housing (and property) affordability challenges for individuals unable to access land through family networks. The process of all leases going through government creates an administrative burden – and it does not appear that government is remunerated for any of the land-related services it provides. Constraints around leasehold payments (which are dictated in law) also appear to create some conflict, in instances of sub-leases.

Given the above and the customary foundations for owning land, there is a limited basis for land valuation – based on land locations, classes and mandated lease amounts – but significant legislative reform would be required to create a firm foundation (and need) for property valuation. There is no formal process of land valuation or capacity on island. Similarly for property taxation – there appears to be no legal basis for, and no system of property taxation on island, which is not uncommon for customary land tenures. However, it may be something to consider given the extent of pseudoprivately owned land and the demand and imperative for improved service provision –especially on Topside if housing is to be developed there.

GoN (2019) Land Due Diligence Report. Proposed Grant Nauru: Solar Power Development Project. P.

4.4 Land Use, Planning and Development

KEY ASSESSMENT TAKEAWAYS

• The lack of clear guidance and legislation around land transfers and leases constrains access to land, both in terms of availability and cost. This is a significant barrier to future investment and infrastructure development and the process of accessing and acquiring land should be reviewed holistically against the future plans and vision for Nauru.

• The formal process of lodging leasehold agreements with government creates an administrative burden that is worth reviewing. Government may wish to consider the benefits and implications of placing a fee on such services.

• Land valuation and property taxation are not currently practiced in Nauru, and there is likely no immediate need. If, however, Nauru seeks to become more investor friendly and market driven, further provisions and capacity development for both may need to be considered.

This section deals primarily with the relationship between land tenure and land administration and land use, land use and spatial planning, and development.

Ultimately, it is a recognised challenge that Nauru does not have a sufficient legal basis, or sufficient institutional and/or private capacity to support planning and development controls. The NIEP (2019) highlights the need for: a national land use policy, development controls and consent processes, a national building code and standard, a legislative basis for environmental and cultural heritage protections, clear zoning, support for service provision (including sanitation and drainage) and enforcement processes for many of these.

Underpinning these laws and processes is the need for reliable and up-to-date spatial data, to enable government (and private sector and individuals) to plan (e.g. spatial planning, including identifying where environmental and cultural protections needed), to manage (e.g. zoning, development controls and approvals) and enforce as necessary. As will be discussed in the following section, some of this information is available and maintained, but it may not be complete. Further capacity is needed to manage

this information in a single land information system and/or as interoperable datasets/ databases.

Access to housing, and commercial buildings, is a recognised challenge that the lack of building controls directly contributes to. Landowners – and those who seek permission to build from landowners – have limited restrictions as to where they can build, and many land portions have multiple uses on the one portion (residential, commercial, sanitation, etc.). There is no clear plan yet enacted and in place to deliver on the necessary homes required for the next decade, 20 years or 50 years.

Subdivision of land is not explicitly dealt with in the Lands Act, and it is not clear how common it is – given the fragmentation of land ownership there does not appear to be a strong culture for dividing land on the basis of multiple descendants inheriting. As described above, there is a process by which individuals may negotiate with landowners to get access to land for building – and this may be a method under which subdivision occurs. Further to this point, there is no legislated minimum land portion size which may lead to further problems. The smallest land portion was identified by the Department of Lands and Survey to be 17m2 in area. It is not clear how many parcels are of similarly small size.

SECTION 1.0 LAND USE, PLANNING, AND DEVELOPMENT

4.5 Land Information, Recording and Cadastre

KEY ASSESSMENT TAKEAWAYS

• The availability of land for infrastructure and service provision (including, in particular, cemeteries) is particularly constrained. There is no compulsory acquisition, and limited ability to identify un/underutilised land.

• The existing land tenure system prevents planned land use and encourages random building by landowners. A land use planning and development framework is essential to address key housing and infrastructure challenges.

• Reliable and up-to-date spatial data and database management systems provides an essential foundation for foundation for land use planning, management, and enforcement. In particular, spatial data is critical to supporting the identification of unutilised and underutilised lands.

• The lack of building and development controls, alongside land ownership and leasehold frameworks, significantly restricts housing and land availability.

• Clarity around land subdivision processes is required.

There is no single land information system for the management of land ownership information and spatial data. The development of a land information system or digital land database is a recognised need, but it does not appear that any progress has been made.

In terms of data available, information from the Department of Lands and Survey suggests that there are over 5000 land portions, and over 300 leases registered. It is reported that an average of 6 leases are registered per day – which is likely to present a significant workload for the Department. Some building footprint information is maintained, but it is incomplete.

Land information managed by the Department of Lands and Survey is recorded in a mix of digital and hardcopy. Land portion boundaries stored on paper plans dating back to the 1970s are slowly being manually digitised into ‘computer assisted drawing’ (cad – using AutoCAD) files19. This process of digitisation is being undertaken by the Survey team concurrently with converting old plan measurements from imperial to metric, and the Department of Lands and Survey works with the Lands Committee to incorporate updated ownership information. The process is reported at 30-50% complete. Newer information has been digitally captured using GPS and Total Station equipment, which export directly to AutoCAD. In terms of overarching coverage, it is not clear how much of the island is included in the digital system.

In addition to AutoCAD, the Survey team also has LISCAD software, that was adopted in approximately 2015. This software is primarily for the use of survey data processing but may currently be being used for storing and viewing data as a pseudo-land information system.

Land ownership data is also managed by the Lands Committee, which has the primary responsibility for this. All information held/maintained by the Lands Committee is understood to be paper-based. Information that the Lands Committee has is based on determinations, which are made on request, and past gazettal notices. It is estimated that approximately 90% of Nauru is ‘determined’, with the remaining 10% likely to be

SECTION 1.0 LAND INFORMATION, RECORDING, AND CADASTRE

19 Although it was reported that approximately a decade ago there was a fire and some records were lost. It is not clear how much, or what data might be missing.

lower priority areas (e.g. lakes)20. It is not clear whether non-public purpose leasehold information is recorded by the Lands Committee.

The Department of Lands and Survey reports an urgent need for safe, secure and reliable archiving of hardcopy information. Similarly, a review of digital data is likely necessary to ensure sufficient backup and redundancy and to remove the risk of data loss and corruption. No information has been obtained on software licensing, or on software/hardware inventories and update/maintenance needs. This is likely to be an issue in the future if it is not already.

Other spatial information that is held includes satellite imagery and possibly other map information (map sales are reported as one revenue source), but this is presumed to be outdated.

Governments would typically use some form of geographic information system (GIS) as the basis for a land information system or for viewing data within a land database system. Geoscience Australia reports creating the Nauru GIS from 1999-2000 “for both broad scale and detailed planning of rehabilitation and secondary mining.” 21 The Department of Lands and Survey does have access to ESRI ArcGIS – although again, it is not clear what version or age this may be. Significant capacity issues were reported by the Survey team - it was indicated that there was no in-house capacity to use the GIS.

Table 3 below provides an overview of the status, coverage and age of key datasets maintained by the Department of Lands and Survey. No dataset shows 100% coverage and all require updating. The quality of land administration data is a key measure of a successful system. Typical components of quality include:

• Reliability: clear responsibility designations, comprehensive and functional databases (typically electronic, to best facilitate integrated datasets), welldocumented processes and unique property identifiers.

20 Personal communication with Department of Lands and Survey 2021. 21 https://dev.ecat.ga.gov.au/geonetwork/srv/api/records/33167

• Transparency: data (including land ownership information and maps) are accessible to those who need it, documents to complete transactions are public available, there is a mechanism for filing complaints, updated cadastral plans are available.

• Geographic coverage: there are no (geographic) data gaps.

• Land dispute resolution: there is a clear mechanism for filing complaints and dispute resolution measures are clearly documented, transactions must be registered to prevent disputes, which are addressed in a timely manner.

Subject to further review, these elements could form the basis for improving Nauru’s land information management.

Table 3 does not identify the environmental data that the Government of Nauru may hold – e.g. topographic information, biodiversity information, marine information and boundaries, coastal data etc. Significant datasets have likely been generated under past consultancy contracts, and some data is known to be available via the SPREPhosted Nauru Environmental Data Portal22 and further work is required to review the spatial datasets available to/managed by the Government of Nauru, prior to developing a strategy for managing this data in an integrated manner in the future.

Table 3: Digital data resources maintained by the Department of Lands and Survey

4.6 Surveying and Geodetic Reference System

KEY ASSESSMENT TAKEAWAYS:

• Land information is incomplete, unreliable and does not meet Nauruan needs. Land ownership, portion boundaries, building footprints, administrative boundaries, critical infrastructure and road network boundaries are all incomplete. This will likely constrain future infrastructure development across the island.

• There is a clear need for documented spatial data management processes. There is further a need for a digital land database (digital cadastre or digital land information system) to effectively and efficiently manage land information. Systematic, one-off efforts may be needed to bring datasets up to standard.

• The low reliability, coverage, and quality of spatial information likely contributes to land disputes. It undermines the ability of government to plan for and address core needs: including housing and infrastructure siting, as well as disaster management preparation and vulnerability assessments.

• Investment in government personnel and infrastructure is required: including training, additional technical personnel or private sector support, computers and software and archival storage.

• More strategically, there is a need to identify how land should be registered and recorded moving forward. Should there be a requirement for all land transactions to be registered? Should government request payments for key services benefiting citizens?

• Interagency cooperation around the management and ownership of spatial data may also be appropriate.

• There is a lack of clear planning around survey and land administration procurement, system maintenance/update and training (across surveying equipment and software).

Image credit: U.S. Department of Energy’s Atmospheric Radiation Measurement Program

4.7 Equipment and Training

Nauru has its own local datum – Nauru Island Datum - and all information is recorded on this. In 2014 a National Geodetic Survey Network Infrastructure was established, but no details of the extent/coverage or what this includes have yet been reviewed. There is a Continuous Global Position System (CGPS) station on Nauru, which was established under the South Pacific Sea Level and Climate Monitoring Project, but it appears to be primarily managed by SPC and Australia, for the purposes of monitoring sea level changes (linking to the tide gauge).

Many countries enlist and enable private surveyors to assist with the burden of maintaining a cadastre (the property boundaries and legal ownership of properties) and addressing surveying needs. There do not appear to be any private surveyors in Nauru, and the Government itself has only 3 licensed surveyors.

There is a significant capacity challenge with so few surveyors, and with limited advanced knowledge of surveying and mathematics to address the challenges of data conversions, climate change data collection/analysis and spatial data management (including adoption of Geographic information systems).

The Department of Lands and Survey has purchased equipment and received training in the past from Australian companies LISTECH and CR Kennedy. LISTECH provided LISCAD software and training along with Leica Instruments (including both total stations and GPS). Three training sessions were provided to approximately 5-10 staff each time, over an approximate three-year window. It is not clear who these staff were, and if they remain employed within the Department.

More recently, CR Kennedy (Australia) was contracted in 2019 to provide equipment and training. A 3 day GPS training and workshop was held in January 2020, and 2 x Leica CS20 Field controllers and 3 x Leica Viva GS16’s were supplied. It is likely that further training would have occurred if not for COVID-19, and may still in the future.

In addition to the above, a review of computing hardware, software and supporting infrastructure (e.g. server and backup systems) is likely necessary to reduce the risk of data loss or corruption, and ensure that a sustainable system remains in place for the future. As data and systems move online, Nauru may need to further consider data privacy protections, and appropriate legislation and adoption of standards for the protection of personal information. Significant support is available to achieve this, for example from the United Nations Committee of Experts on Global Geospatial Information Management, Geoscience Australia, and others.

KEY ASSESSMENT TAKEAWAYS:

• Nauru’s surveying and geodetic capacity should be reviewed in light of likely future demands. Past and present relationships with SPC, Australia and others demonstrate that it is not necessary to have all skills in-house.

More training is certainly needed, and a clear plan for technology management and implementation into the future.

SECTION 1.0 EQUIPMENT AND TRAINING

5 Summary of Key Land Tenure and Administration Challenges

KEY ASSESSMENT TAKEAWAYS

• Whilst the capacity and infrastructure/equipment gaps have already been highlighted, Nauru’s clear need is in the development of a clear plan for technology (hardware/ software) procurement, including planning for training, maintenance and contract management (as appropriate).

• As Nauru progresses to greater adoption of digital data and online data management, consideration of relevant data policies may be pertinent: including data privacy and security protections and standards.

The above has highlighted the existing context of land in Nauru. Many of the land tenure and administration challenges are known, but they are articulated here with reference to possible impacts on the master planning process and Land Portion 230 development. Identification and discussion of these challenges forms the basis for discussion with key stakeholders, and collaborative development of an agreed short-, medium- and longer-term action plan for land reform.

1. Land ownership fragmentation creates barriers to land and housing access, barriers to development and community engagement, administrative burdens, landowner absenteeism and a likely increase in land disputes.

Many people partially own multiple land portions. This is influenced by inheritance practices and creates a number of flow-through challenges. Likely impacts need further review but can be inferred from other contexts such as the Cook Islands and New Zealand.

Many owners of small shares in land, which are worth less, creates a disincentive for individuals to consolidate land ownership which only increases (due to cost and effort) with the number of shareholders. Higher owner numbers also increase the challenge and complexity of community consultation.

Landowner absenteeism becomes more likely with multiple landowners. Absentee

landowners are less likely to be invested in communities and community development and may be less willing to support measures that require some responsibility or restriction to their right – as in the case of environmental or heritage protections, or development controls. Lower participation and investment in communities limits the flexibility and effectiveness of communities to allocate land rights and effectively manage land.

It would be worthwhile reviewing whether land ownership fragmentation in Nauru has limited land development and the improvement of land in the past and/or the extent to which it contributes to poor housing conditions.

Land ownership fragmentation further contributes to administrative burdens and fatigue, including complicating the processes of: maintaining up to date records of ownership, seeking consent for public purpose leases, and undertaking consultation, managing rent and royalty payments. If this situation is to continue, government may wish to consider some form of remuneration for services, and alternative options for managing large landowner/shareholder numbers (e.g. community trusts or similar).

Ultimately, if Nauru is seeking to develop a future land market for commercial investment, including by companies and foreign investors, then the existing system is likely to present a significant barrier to doing so. It is also likely to limit financial institution interest in granting credit via mortgages, recognising that this is already inhibited by the limitation of non-Nauruan people to own land.

Key questions for Nauru to consider around land ownership fragmentation

include:

I. Is there a willingness to

a. consolidate land ownership?

b. develop a land market?

c. open up land to foreign investment?

II. How will Land Portion 230 be owned once developed?

III. What options are available to develop Topside under present ownership regimes?

IV. How should coastal lands continue to be managed during and after the Topside migration?

2. Nauru’s statutory framework for land is immature, and significant reform is needed to develop comprehensive land, development and environment laws that address current practice and reflect the needs of Nauru and its people.

Whilst many customary societies struggle to reconcile the continuously developing/ emerging nature of customary practice versus the static nature of statutory law, in Nauru there appears to be strong commitment to reforming the land laws.

Recognising that some reforms are underway, and that there is a push for land legislation “to be more investor friendly and market driven” the following comprises some elements to consider. This should not replace a comprehensive legal review, but provides the basis for decision-making and scoping moving forward:

• A Constitutional amendment to underpin the key principles of land ownership, custodianship and management. This would bring clarity of purpose and stronger foundations to future sustainability initiatives, such as HGI and would need to be part of a much wider consultation process.

• The Lands Act 1976 needs significant reform, including identifying the full range of tenure types in practice (and possibly required in the future), revising the focus of the Law to encompass the future needs of Nauru including environmentally-sensitive

development, and to reflect the full range of practice relating to land interests, transfers and registration. Greater land tenure transparency has the potential to reduce land disputes and provide the basis for discussions around possible restrictions and responsibilities in support of the future strategic development and environmental rehabilitation of Nauru.

• The Lands Committee Act 1956 straddles customary and statutory processes. If Nauru wishes this to be a statutory process, it should be reviewed to improve transparency and more comprehensively document processes (including selection of Committee members, exact responsibilities and processes to determine land ownership and rights). Other Pacific Island nation initiatives that address land ownership determination processes should be reviewed.

• The Survey Act 1961 is outdated and prescribes processes for surveying that no longer match the technologies and work undertaken in practice. It should be updated, alongside the Regulations. (It is understood that this is underway).

• Additional legislation is required to reflect and support Nauru’s national environmental priorities, national infrastructure and development needs and future economic resilience. Many of these have been identified and include (but are not limited to): land use policy/ies, a national building code and standard, clear zoning, support for service provision (including sanitation and drainage), development controls and consent processes, and enforcement processes for many of these.

• A land use planning and development framework is essential to address key housing and infrastructure challenges. If Nauru seeks to become more investor friendly and market driven, further provisions for land valuation and taxation may also need to be considered.

• Legislative support for marine tenure, and integration with land tenure, should be reviewed.

Legal reform, of course, is not a standalone solution and in most if not all cases (given the customary land tenure regime) requires extensive consultation, community sensitisation and co-development to ensure the social legitimacy of the legal

framework once reformed.

Key questions for Nauru to consider legislative reform:

I. What core land tenure types reflect current and intended future practice?

II. How can restrictions and responsibilities to land tenure rights be introduced?

3. Limited supply of housing and developable land limits housing access. Incomplete datasets, limited government capacity and absence of building and development controls also limit ability to identify underutilised land portions.

The lack of a land market, together with the slow pace of Topside rehabilitation, likely also contributes to the limited supply of developable land for housing, infrastructure, and public purposes/services. A known problem is the identification of sufficient suitable land for cemeteries. Addressing supply, as well as un/underutilised land are also issues of information, land use planning and development controls, which will be addressed in the next section.

That Nauru’s existing land tenure framework does not support a land market, with only the ability to buy and sell between Nauruans, is not necessarily a challenge but appears at odds to Nauru’s land ownership practice (highly individualised and income focussed) and suggested future direction (market and investment focussed). Moving forward, the Government and people of Nauru may wish to consider the advantages and disadvantages of further enabling the buying and selling of land. Consideration of compulsory acquisition laws should be a part of this discussion – Nauru is one of the few Pacific nations that does not have provision for compulsory acquisition, although arguably it has not been necessary to date due to leasehold practices.

Key questions for Nauru to consider around housing and developable land:

I. To what extent does Nauru want to fully develop a land market?

4. There is a significant number of land disputes, the process to resolve disputes is not transparent and there is a backlog of cases in the Courts.

The significance of the land dispute challenge is inferred from available literature and policy documents, but there is a significant caveat that no conversations have been had, or data directly received from the Lands Committee or Ministry of Justice/Courts. Regardless, the process does not appear to be transparent, which is particularly important where elements are enshrined in law. There is a need to identify the key drivers of land disputes and how these can be more simply and efficiently addressed. A lack of transparency calls into question the level of community trust in and acceptance of dispute resolution processes, which should also be reviewed.

Key questions for Nauru to consider around land dispute resolution

I. Is there public trust in and acceptance of land dispute resolution processes?

II. Are there concerns around enshrining dispute resolution processes wholly within law?

5. Land information is incomplete, unreliable, disparately managed and does not meet Nauruan needs.

Core principles of land data include reliability, comprehensiveness, transparency and accessibility. In Nauru, fire has compromised past land and cadastral datasets. Land ownership, portion boundary and building footprint information is maintained but is incomplete and unreliable, and it is likely that there is duplication of data between

authorities.

There is a clear and recognised need for a digital land database to manage land information effectively and efficiently. In developing this, there is a need for a systematic process to ensure the reliability, quality and coverage of data to be inputted to the system. A long-term strategic plan for the maintenance of land and spatial information, ideally agreed across agencies, is also necessary, that identifies clear roles and responsibilities for all datasets.

The lack of land information, and land information reliability, is likely a further source of land disputes. It undermines government’s ability to identify underutilised or unutilised land for service provision (e.g. cemetery siting) or to plan future housing.

As part of upgrading data and data systems, a long term plan is necessary for the adoption, maintenance and planned upgrading of hardware and software, alongside investment in staff technical capacity. The government may wish to consider the role of the private sector in supporting key efforts, either developing this domestically or seeking support from the region. Software and hardware suppliers will typically support capacity development (ESRI, in particular, has particular support services for government and low capacity nations). There are a number of region-wide and international initiatives from which further assistance and mentoring can be found: e.g. the Committee of Experts for Global Geospatial Information Management (UN-GGIM), Pacific Geospatial and Surveying Council (PGSC), International Federation of Surveyors (FIG), etc.

As data is digitised and increasingly moves online, consideration should be given to data backups, information privacy and security.

Key questions for Nauru to consider around land information

I. Should the registration of all land transactions be mandated?

II. Should government seek to be remunerated for key services, in order to assist with funding required reforms and initiatives?

III. What level of digitalisation of land and surveying services meets present and future needs?

6. Insufficient technical capacity and infrastructure, including a lack of inhouse skills to comprehensively collect, manage and update land information.

This limits land management, as well as government’s ability to monitor climate change impacts. Poor infrastructure further compromises both internal capacity and the reliability of data – and makes government systems and the Nauruan population further vulnerable to climate change and disasters.

There is a recognised lack of sufficiently qualified and trained personnel, and absenteeism is a noted issue. There is a need for strategic planning around survey and land administration procurement, system maintenance/update and training (across surveying equipment, software and processes). Government may wish to review the need and any opportunity provided by the private sector.

Further land administration needs have been identified: including the need for further vehicles, reliable archival storage, and computing hardware.

Key questions for Nauru to consider around capacity

I. Is there a role for the private sector, either as one-off or ongoing, and either locally or regionally?

II. What opportunities are there for Nauru to leverage regional (Pacific) support to sustainably build capacity?

SECTION 1.0 SUMMARY

Annex 1: Wider Donor and Project Environment

Nauru’s ambitions, given the scale and need alongside fiscal and capacity vulnerabilities, will likely need external assistance to fund and implement (including from foreign aid and foreign direct investment, as noted in the NSDS (2019 revision). Nauru’s status as an upper income country23 is likely to limit available funding sources, however there are a significant number of existing and ongoing development projects, representing development partner interest and likelihood of assistance. Rather than present an exhaustive list here24, the following provides a brief snapshot of the wider donor and project environment, as it directly relates to land tenure/administration and master planning. The purpose of this is to identify key partners, types of projects funded, and key challenges.

Firstly, key past and present development partners to Nauru include the Asian Development Bank (ADB), Australia’s Department of Foreign Affairs and Trade (DFAT), Japan, New Zealand’s Ministry for Foreign Affairs and Trade (MFAT), Taiwan (Republic of China – ROC), and the United Nations Development Program (UNDP). Other affiliated organisations that may be available for support include the Pacific Community (SPC), Green Climate Fund (co-financing some of the activities below), Global Environment Fund (GEF), and World Bank.

A range of development partner funded/co-funded projects are ongoing in Nauru. These include: the Sustainable and Climate Resilient Connectivity Project (ADB), Public Policy Strengthening (multiple donors), Solar Power Development Project (ADB), Sustainable Urban Development Project (ADB), Pacific Ridge to Reef Programme (GEF), Supporting Mainstreamed Achievement of Roadmap Targets on Energy in Nauru (SMARTEN, UNDP). Broader Pacific-wide initiatives address gender, infrastructure, covid-recovery and climate change. The relevancy of these to land tenure can be summarised as follows:

1. Whilst recognised as fundamental to environmental and economic recovery and growth, there has been limited past support/investment in Nauru-led land tenure

23 World Bank Country and Lending Groups

https://datahelpdesk.worldbank.org/knowledgebase/articles/906519-world-bank-country-and-lending-groups

24 A more comprehensive list can be found in the Republic of Nauru’s Development Fund Annual Projections 2021-22 (1 June 2021) Available at: https://naurufinance.info/wp-content/ uploads/2021/05/DEVFUND-PROJECTIONS-21-250521_final.pdf Accessed 22 Oct 2021.

reform. This includes past/ongoing institutional and policy strengthening initiatives. Particular drivers for tenure reform are likely to come from the infrastructure and climate change/biodiversity sectors.

2. Land acquisition and resettlement processes have been and will be critical to large scale infrastructure projects, providing key impetus for improving land administration.

3. The complexity of the land tenure system, and the limited institutional capacity to manage and administer land is a key limiting factor to environmental conservation/ establishment of protected areas, food security through agriculture and has the potential to significantly delay infrastructure and development projects as well as achievement of international biodiversity and other commitments.

Of particular note is the Ecosystem Restoration and Sustainable Land Management to Improve Livelihoods and Protect Biodiversity in Nauru project, supported by the GEF. This project is slated to commence in 2022, with GEF providing approximately 15% of total identified project costs. Project Component 1: Strengthening policy and institutional capacity for sustainable land management and biodiversity conservation identifies project outputs key elements relevant to this assessment, including:

Project Output 1.1: National legislation, policies and procedures relevant to land use planning and management, environmental assessment and biodiversity conservation incl. Protected Areas reviewed and strengthened.

Project Output 1.2: Land use plan developed and accessed by stakeholders to guide decision-making, land use management and mainstreaming of biodiversity

Project Output 1.3: Affected stakeholders are able to receive updates on progress and developments through a web-based geospatial database

Project Output 1.4: Stakeholders are able to conduct strengthened compliance monitoring and enforcement due to multi-stakeholder land use planning and management systems

Key opportunities for Nauru to fund future initiatives should be explored. Potential opportunities might include:

• Technical assistance only support: whereby the bulk of initiatives are self-funded, but development partners (including through South-South cooperation) provide technical, administrative and/or managerial support.

• Direct development partner financing: this is possible, but development partners are likely to preference co-financing and/or funding of critical infrastructure. Attention will need to be paid ongoing project sustainability and ensuring technical and managerial capacity is retained in-country.

• Alternative financing mechanisms: including independent funding sources, financing of joint initiatives with other Pacific nations to build learnings and progress regionally, funding early proof-of-concept or design-level projects in partnership with universities and research grants, etc.

In the domain of land administration and governance, and spatial data and surveying there is a high level of interest in developing capacity through regional initiatives and partnerships with regional and international bodies – e.g. SPC, PGSC, UNGGIM, Australia, New Zealand, UN etc. – as well as professional organisations (e.g. International Federation of Surveyors – FIG).

Annex 2: Gazette Example

REPUBLIC OF NAURU GOVERNMENT GAZETTE PUBLISHED BY AUTHORITY

No. 167 21st October, 2021 Nauru

G.N.No. 732/2021

AMENDMENT In Government Gazette No. 110/2021, G.N.No No.492/2021.

The Nauru Lands Committee amends the Personalty Estate of the late Ketner Ketner

Delete: Terabwena (Jnr) Taeuea Ketner (T/TEE Jesselenko Ketner)

Insert: Junior Terabwena Taeuea Ketner (T/TEE Jeslincgo Ketner)

NOTE:-Those who are dissatisfied with the decision of the Committee may appeal to the Supreme Court Registry within 21 days after the decision is published.

EDWINA KARL

CHAIRPERSON NAURU LANDS COMMITTEE

G.N.No. 733/2021

AMENDMENT/ADDENDUM REF:-GAZ 137/2021, G.N.No. 613/2021

RE:-PERSONALTY ESTATE OF THE LATE MARGARITA DONGOBIR

Delete:- Rainier Dongobir -1/4

Jul-eye Eibido Dongobir -1/4

Eligio Manzer Dongobir -1/4

Eigona Never-ever Dongobir -1/4

Insert:- Paulus G Dongobir -ALL

EDWINA KARL

CHAIRPERSON, NAURU LANDS COMMITTEE

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No. 167 21st October 2021 Nauru

G.N.No. 734/2021

PERSONALTY ESTATE OF THE LATE ELIZABETH DUBURIYA

The Nauru Lands Committee has determined the estate of above named deceased and agreed that the estate should be divided in the following manner:-

DECEASED SOURCE OF INCOME BENEFICIARIES SHARE

Elizabeth Duburiya All monies, Rentals, Royalties, bank accounts, etc.

Eric Duburiya

Angelo Duburiya

Arbon Duburiya

Annie Antoinette Duburiya

Shalom Burnell Dabwadauw

Shine-on Levona Quadina

Sweetie-Cutie Shinie Ofiana Dabwadauw

Sheena Goodness Dabwadauw

Molahs Shepherd Elijah Dabwadauw Shalom

Reconsen Royal Dabwadauw Burnell

Tisla Dabwadauw

NOTE:-1) Those who disagree with the above determination shall appeal to the Supreme Court of Registry within 21 days of this Government gazettal.

EDWINA KARL CHAIRPERSON, NAURU LANDS COMMITTEE

No. 167 21st October, 2021 Nauru

G.N.No. 735/2021

PERSONALTY ESTATE OF THE LATE MARGARIET DABWADAUW

The Nauru Lands Committee has determined the estate of above named deceased and agreed that the estate should be divided in the following manner:-

DECEASED SOURCE OF INCOME BENEFICIARIES SHARE

Margariet

All monies, Rentals, Royalties, bank accounts, etc.

Annie A Duburiya Shalom B Dabwadauw

Shine-On L Quadina

Sweetie-Cutie S O Dabwadauw

Sheena Goodness Dabwadauw

Molahs S E Dabwadauw

Reconsen R Dabwadauw Shalom Burnell Tisla

NOTE:-1) Those who disagree with the above determination shall appeal to the Supreme Court of Registry within 21 days of this Government gazettal.

G.N.No. 736/2021

EDWINA KARL CHAIRPERSON, NAURU LANDS COMMITTEE

ESTATE OF THE LATE MARGARIET DABWADAUW

1. The Nauru Lands Committee has ascertained that the Late Margariet Dabwadauw is the owner of the following lands;

G.N.No. 736/2021 (Cont’d)

2. The Nauru Lands Committee has determined the beneficiaries of the Late Margariet Dabwadauw is in respect of the following lands shown in paragraph 1.

Molahs S E Dabwadauw Shalom B Dabwadauw 23/6460

Reconsen R Dabwadauw Shalom B Dabwadauw 23/6460

Tisla Dabwadauw Shalom B Dabwadauw 23/6460 Aiwo ANIBAWO 127 As for portion no,32 CL Aiwo Aiwo ANERUE 139 -doAiwo EATERAURO 152 -do-

YATAM 163 -do-

No. 167 21st October, 2021 Nauru

G.N.No. 736/2021 (Cont’d)

Anetan ATOWEDUDU 30 Annie A Duburiya 91/30720

Shalom B Dabwadauw 91/30720

Shine-On L Quadina 91/30720

Sweetie-Cutie S O Dabwadauw 91/30720

Sheena G Dabwadauw 91/30720

Molahs S E Dabwadauw Shalom B Dabwadauw 91/30720

Reconsen R Dabwadauw Shalom B Dabwadauw 91/30720

Tisla Dabwadauw Shalom B Dabwadauw 91/30720

Anetan IMERIN 134 As for portion no,30 PL Anetan

Anibare MOCKIN 281 -doljuw BOGOMORUW 59 Annie A Duburiya

Shalom B Dabwadauw

Shine-On L Quadina

Sweetie-Cutie S O Dabwadauw

Sheena G Dabwadauw

Molahs S E Dabwadauw Shalom B Dabwadauw 10/4213

Reconsen R Dabwadauw

Meneng

No. 167 21st October, 2021 Nauru

G.N.No. 736/2021 (Cont’d)

Molahs S E Dabwadauw Shalom B Dabwadauw 133/61440

Reconsen R Dabwadauw Shalom B Dabwadauw 133/61440

Tisla Dabwadauw Shalom B Dabwadauw 133/61440 ljuw ARERUWI 104 Annie A Duburiya 6/4051

Shalom B Dabwadauw 6/4051

Shine-On L Quadina 6/4051

Sweetie-Cutie S O Dabwadauw 6/4051

Sheena G Dabwadauw 6/4051

Molahs S E Dabwadauw Shalom B Dabwadauw 6/4051

Reconsen R Dabwadauw Shalom B Dabwadauw 6/4051

Tisla Dabwadauw Shalom B Dabwadauw 6/4051 Anetan IANAD 114 Annie A Duburiya 175/147456

Shalom B Dabwadauw 175/147456

Shine-On L Quadina 175/147456

Sweetie-Cutie S O Dabwadauw 175/147456

Sheena G Dabwadauw 175/147456

Molahs S E Dabwadauw Shalom B Dabwadauw 175/147456

Reconsen R Dabwadauw Shalom B Dabwadauw 175/147456

Tisla Dabwadauw Shalom B Dabwadauw 175/147456

Anetan IATEIDEDAB 115 As for portion no,114 CL Anetan

YATAM 150 Annie A Duburiya 91/92160

32 As for portion no,150 CL Aiwo

Buada ADENENERA 104 -do-

Buada ADUNGIDUNGIN 127 -do-

ljuw IANADUM 106 -do-

Anetan IMETO 135 Annie A Duburiya 91/153600

Shalom B Dabwadauw 91/153600

Shine-On L Quadina 91/153600

Sweetie-Cutie S O Dabwadauw 91/153600

Sheena G Dabwadauw 91/153600

Molahs S E Dabwadauw Shalom B Dabwadauw 91/153600

Reconsen R Dabwadauw Shalom B Dabwadauw 91/153600

Tisla Dabwadauw Shalom B Dabwadauw 91/153600

Aiwo IJATAM 30 Annie A Duburiya 5/8777

Shalom B Dabwadauw 5/8777

Shine-On L Quadina 5/8777

Sweetie-Cutie S O Dabwadauw 5/8777

Sheena G Dabwadauw 5/8777

Molahs S E Dabwadauw Shalom B Dabwadauw 5/8777

No. 167 21st October, 2021 Nauru

G.N.No. 736/2021 (Cont’d)

Reconsen R Dabwadauw Shalom B Dabwadauw 5/8777

Tisla Dabwadauw Shalom B Dabwadauw 5/8777

Anetan IBWETAE 120 Annie A Duburiya

Shalom B Dabwadauw

Shine-On L Quadina

Sweetie-Cutie S O Dabwadauw 2/8777

Sheena G Dabwadauw 2/8777

Molahs S E Dabwadauw Shalom B Dabwadauw 2/8777

Reconsen R Dabwadauw Shalom B Dabwadauw 2/8777

Tisla Dabwadauw Shalom B Dabwadauw 2/8777

NOTE:-1) Those who disagree with the above determination shall appeal to the Supreme Court of Registry within 21 days of this Government gazettal.

EDWINA KARL CHAIRPERSON, NAURU LANDS COMMITTEE

G.N.No. 737/2021

1. The Nauru Lands Committee has ascertained that the Late Damien Joram is the owner of the following lands;

G.N.No. 737/2021 (Cont’d)

DETERMINATION OF

2. The Nauru Lands Committee has determined the beneficiaries of the Late Damien Joram is in respect of the following lands shown in paragraph 1.

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No. 167 21st October, 2021 Nauru

G.N.No. 737/2021 (Cont’d)

Meneng 17 ANOBOROBOREN ~do~

Meneng 239 UNOW ~do~

Meneng 263 UNOW ~do~

Anibare

Osia Dongobir 11/22680

Twytober Dongobir 11/22680

Marissa Dongobir 11/22680

Ma-Huni Dongobir 11/22680

Anibare 249 ATEBOREBOR Dempsey Joram

Osia Dongobir 41/90720

Twytober Dongobir 41/90720

Marissa Dongobir 41/90720

Ma-Huni Dongobir 41/90720

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No. 167 21st October, 2021 Nauru

G.N.No. 737/2021 (Cont’d)

Anibare 57 AGABWE Dempsey Joram 2/945

Dobina Ika 2/945

Raven Joram 2/945

Terry Joram 2/945

Twylani Joram 2/945

Cleopatra Dongobir 2/4725

Osia Dongobir 2/4725

Twytober Dongobir 2/4725

Marissa Dongobir 2/4725

Ma-Huni Dongobir 2/4725

Uaboe 60 OQUORE As for portion 57 C.L Anibare Anibare 170 ANURUN Dempsey Joram 1/504

Dobina Ika 1/504

Raven Joram 1/504

Terry Joram 1/504

Twylani Joram 1/504

Cleopatra Dongobir 1/2520

Osia Dongobir 1/2520

Twytober Dongobir 1/2520

Marissa Dongobir 1/2520

Ma-Huni Dongobir 1/2520

Buada 28 RUBWINIJA Dempsey Joram 1/756

Dobina Ika 1/756

Raven Joram 1/756

Terry Joram 1/756

Twylani Joram 1/756

Cleopatra Dongobir 1/3780

Osia Dongobir 1/3780

Twytober Dongobir 1/3780

Marissa Dongobir 1/3780

Ma-Huni Dongobir 1/3780

Buada 232 BANGABANGA As for portion 28 P.L Buada

Meneng 15 ANOBOROBOREN Dempsey Joram 1/1176

Dobina Ika 1/1176

Raven Joram 1/1176

Terry Joram 1/1176

Twylani Joram 1/1176

Cleopatra Dongobir 1/5880

Osia Dongobir 1/5880

Twytober Dongobir 1/5880

Marissa Dongobir 1/5880

Ma-Huni Dongobir 1/5880

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No. 167 21st October, 2021 Nauru

G.N.No. 737/2021 (Cont’d)

Meneng 105 IREBEDI As for portion 15 C.L Meneng

Meneng 290 ANOBOROBOREN ~do~

Meneng 302 AREDETO ~do~

Meneng 328 IANADUM ~do~

Anibare 380 KETAWIYI Dempsey Joram 1/2352

Dobina Ika 1/2352

Raven Joram 1/2352

Terry Joram 1/2352

Twylani Joram 1/2352

Cleopatra Dongobir 1/11760

Osia Dongobir 1/11760

Twytober Dongobir 1/11760

Marissa Dongobir 1/11760

Ma-Huni Dongobir 1/11760

Anibare 398 PEGOGORA As for portion 380 P.L Anibare

Meneng 69 AREDETO ~do~

Meneng 274 ATUWURO ~do~

Meneng 297 ANUBWIYA ~do~

Meneng 308 ANUBWIYA ~do~

Meneng 433 ATEBI ~do~ Meneng 68 IUA Dempsey Joram

No. 167 21st October, 2021 Nauru

G.N.No. 737/2021 (Cont’d)

NOTE- 1) Those who disagree with the above determination shall appeal to the Supreme Court Registry within 21 days of this Government gazettal.

EDWINA KARL CHAIRPERSON, NAURU LANDS COMMITTEE

G.N.No. 738/2021

RE: DETERMINATION OF THE LATE JILL EMETSI ADU LTO REF 18/20, G.N.N. 44/2020

1. The Nauru Lands Committee has ascertained that the late Jill Emetsi Adu is the owner of the following lands;

No. 167 21st October, 2021 Nauru

G.N.No. 738/2021(Cont’d)

G.N.No. 738/2021(Cont’d)

DETERMINATION OF

2. The Nauru Lands Committee has determined he beneficiaries of the late Jill Emetsi Adu is in respect of the following lands shown in paragraph 1.

No.

G.N.No. 738/2021(Cont’d)

273 Yangor -do-

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No. 167 21st October, 2021 Nauru

G.N.No. 738/2021(Cont’d)

Aiwo 451 Anota -do-

Anibare 131 Aniraeoe -do-

Buada 56 Ijakabab -do-

Buada 79 Ijuae -do-

Buada 87 Ijuae -do-

Buada 117 Yedauw -do-

Buada 156 Atebobo -do-

Buada 170 Atenani -do-

Buada 185 Ijobwenuedu -do-

Buada 153 Anota -do-

Buada 238 Boremama -do-

Denigomodu 162 Atoeaeow -do-

Denigomodu 196 Atumurumur -do-

Nibok 66 Bwimeremer -do-

Buada 20 Atero Mike Aroi 2/875

Kim Hubert 2/875

Kerry Cain 2/875

Dogabebe Aroi 2/875

Malcolm Aroi 2/875

Tsine Detabene 2/175

Florinda Adu

Obed Adu (LTO)

Bernicke

Atengeiy Adu 1/525 Leeman Adu 1/525

Isaachar Thoma 1/525

Corona Adu (LTO) 1/525

Buada 239 Boremama As for portion no,20 PL Buada

Buada 387 F.G.W.S.L -do-

Nibok 147 Angowang Mike Aroi 3/1750

Kim Hubert 3/1750

Kerry Cain 3/1750

Dogabebe Aroi 3/1750 Malcolm Aroi 3/1750 SECTION 1.0

-17-

No. 167 21st October, 2021

G.N.No. 738/2021(Cont’d) Tsine

-18-

No. 167 21st October, 2021 Nauru

G.N.No. 738/2021(Cont’d)

Nibok 117 Arenugogo -do-

Yaren 340 Umwanawa -do-

Aiwo 306 Mike Aroi 6/6125

Kim Hubert 6/6125

Kerry Cain 6/6125

Dogabebe Aroi 6/6125

Malcolm Aroi 6/6125

Tsine Detabene 6/1225

Florinda Adu 3/1225

Obed Adu (LTO) 3/1225

Shadlog Bernicke 3/2450

Alwyn Bernicke 3/2450

Biangka Bernicke 3/2450

Marina Uera 1/4900

Salodina Thoma 1/4900

Oaeion Thoma 1/4900

Selwyn Thoma 1/4900

Lina Thoma 1/4900

Emagina Thoma 1/4900

Tee-Jay Adu 1/1225

Harry-James Adu 1/1225

Atengeiy Adu 1/1225

Leeman Adu 1/1225

Isaachar Thoma 1/1225

Corona Adu (LTO) 1/1225 Anibare

Ibwetom,Westernblock As for portion no,306 PL Aiwo

No. 167 21st October, 2021

G.N.No. 738/2021(Cont’d)

No.

G.N.No.

-22-

No. 167 21st October, 2021 Nauru

G.N.No. 738/2021(Cont’d)

NOTE- 1) Those who disagree with the above determination shall appeal to the Supreme Court Registry within 21 days of this Government gazettal.

EDWINA KARL CHAIRPERSON, NAURU LANDS COMMITTEE

Annex 3: Department of Lands and Survey Organizational Chart, Fee Schedule and Housing Petition Request

SECTION 2.0

SECTION 2.0

SOCIAL SAFEGUARDS

3

3.1

3.2

3.3

3.4

3.5

3.6

3.7

4

4.1

4.2

4.3

5 Identified Project Risks

6 Key Social Safeguard Considerations and Next Steps

7 References & Bibliography

Annexes

Annex 1: Overview of ADB’s Safeguard Policy Statement 2009

Annex 2: A Shared Approach Stakeholder Engagement

Annex 3 ADB Resettlement Principles and Actions Required

Annex 4: Nauru country safeguards framework review

Annex 5: Risks

SECTION 2.0 TABLE OF CONTENTS

TABLE OF FIGURES

Figure 1: Map of Nauru, showing Land Portion 230 (inside red square). (Source: Design Workshop)

Figure 2: Population of Nauru by district (Source: Design Workshop)

Figure 3: Nauru population distribution pyramid (Source: 2019 Mini-Census)

TABLE OF TABLES

Table 1: Population and population density by district (RoN, 2014)

Table 2: Safeguard Policy Frameworks of relevant development partners

Table 3: Safeguard activities mapped against the project cycle (adapted from PRIF, 2017).

Table 4: Key reference documents for social safeguarding activities

Table 5: Elements of meaningful stakeholder engagement (Revised from Kvam, 2019)

SECTION 2.0 FIGURES AND TABLES

Acknowledgements

This report has been prepared by staff and consultants of Land Equity International including: Kate Fairlie, Douglas Martin and Dimuna Phiri.

Abbreviations & Acronyms

ADB Asian Development Bank

AIP ADB’s Access to Information Policy 2018

CCP Consultation and Communications Plan

CEMP Construction Environmental Management Plan

CHEC China Harbour Engineering Company Ltd

CLO Community Liaison Officer

DFAT Department of Foreign Affairs and Trade (Australia)

DSC Design and Supervision Consultant

EA Executing Agency

EGM Effective Gender Mainstreaming

EMP Environmental Management Plan

ESF Environmental and Social Framework (ESF)

GAP Gender Action Plan

GCN Grievance case number

GCF Green Climate Fund

GON Government of Nauru

GRM Grievance Redress Mechanism

HGI Higher Ground Initiative

IFI International Financing Institutions

LEI Land Equity International

MOF Ministry of Finance

MOU Memorandum of Understanding

O&M Operations and maintenance

PPP (Project Participation Plan)

NMPA Nauru Maritime Port Authority (formerly Port Authority of Nauru)

PMU Project Management Unit

SPS Safeguard Policy Statement 2009 (ADB

Executive Summary

This paper has been prepared under the Vision and Feasibility Master Plan in support of Higher Ground Initiative project. It provides a high-level overview of the social context of Nauru and existing development partner safeguarding policies to ensure a common understanding of preliminary potential social safeguarding issues and to support future social safeguards action under the project. The core frame of reference is the development of the government-owned Land Portion 230 for housing, the preliminary design of an island-wide master plan and designs and future implementation of infill housing in three select locations in Nauru’s coastal areas.

The initial audience for this document is the internal project team. It should be reviewed and revised prior to sharing with the Nauru HGI Steering Committee. Future options for sharing may include: sharing as a single document, embedding sections of this document within other deliverables, or sharing a shorter guidance note.

This document is not a Social Safeguards review, Due Diligence Report or other more formal assessment of social safeguarding risks specific to the project. Given the early phase of this project, and the limited project team awareness of social safeguards, it was deemed useful to develop an introductory, high level document to provide information on what safeguards are, why they are important, and to foreshadow what safeguards issues and challenges might arise under future vision scenarios.

Safeguards are measures that protect people or things (e.g. the environment) against (often inadvertent) undesirable or harmful outcomes. A number of development partners have established Safeguard Policy Frameworks, which include operational policies that seek to avoid, minimize or mitigate adverse environmental and social impacts, including protecting those whose rights are likely to be affected or marginalized by a specific development. This report targets social safeguards, and additional work would be necessary to explore environmental safeguarding risks relevant to the project. The report also highlights the need for meaningful consultation and stakeholder engagement, as fundamental aspects of project sustainability and success, and social safeguarding risk mitigation.

Social and environmental safeguards are important in their own right to promote equity, recognize the rights and needs of vulnerable groups and to ensure timely and safe project delivery. Many countries will already have at least some safeguards protections in place through legislation, policies and other practices. Appropriate consideration of safeguards is also important from an international financing point

of view: international development partners typically have their own safeguards frameworks to adhere to, and financing is dependent on compliance. Ensuring a strong culture of safeguarding is in place prior to seeking development partner funding will stand the project in good stead.

In providing a high-level overview of the social context of Nauru, this report provides a rapid analysis of key demographic and other information, drawing particularly from the 2011 census (with some updates). It identifies key population/demographic vulnerabilities of relevance to the project. The document then provides an introduction to safeguards and key considerations of particular relevance to Land Portion 230.

Key findings are discussed in terms of the implications of key demographic information on the project and in terms of key social safeguard considerations and next steps for the project. These can be summarized as:

1. A need to identify key stakeholders (especially vulnerable groups and their representatives) and take preliminary steps towards developing a stakeholder engagement plan.

2. A need to understand the implications of a ‘voluntary resettlement’ process, by developing an ‘options report’ including potential mechanisms and risks, reviewing Nauru and international resettlement experience (via resettlement plans) and evolving the project description in order to understand the proposed physical, land, population, cultural & socioeconomic components of the proposed relocation.

3. Further work to understand key population vulnerabilities, and the extent to which vulnerable groups will be targeted under the project.

4. Further work to understand community aspirations and requirements with regards to the design of private and public spaces.

5. Legal framework recommendations to improve Nauru’s national country safeguards framework.

6. Further actions to support the sustainability of the project, including through procurement, institutional capacity and sustainable budgeting.

1.0 Introduction

This working paper has been prepared by Land Equity International (LEI) to provide a preliminary overview of the social safeguard aspects of the Vision and Feasibility Master Plan in support of the Higher Ground Initiative, implemented under the leadership of Metrocology, and the broader Higher Ground Initiative (HGI) being led by the Government of Nauru (GoN) HGI Steering Committee. Under these initiatives, a Master Plan and design of one government-owned Land Portion – Land Portion 230 – is being scoped and developed, as well as a draft Feasibility Master Plan for the whole island, including housing infill in several pilot sites. Work beyond the design of these initiatives will likely require additional financing by development partners. Social safeguarding aspects relevant to this work are likely to revolve around land exchange, housing, land leasing & tenure options for Land Portion 230.

Safeguards seek to prevent the adverse impacts of development projects, manage their environmental & social risks, and promote social inclusion. Social safeguards are intended to reduce social impacts and other unintended impacts, and when the impacts cannot be averted, to develop appropriate measures to mitigate them. Likewise, environmental safeguards seek to reduce or manage risks pertaining to the physical and biological environment. This paper predominantly concerns social safeguards. Consideration of safeguards issues during this identification and feasibility stage of the project will best support project sustainability and help to facilitate funding and implementation of the various components’ projects by meeting potential development partner requirements.

The paper provides a brief profile of the Nauru population and goes on to discuss core development partner safeguarding requirements as a basis for establishing an initial set of priorities and preliminary actions towards addressing social safeguards. These will not only support the design and development of immediate project deliverables but will support the preparation and possible future investment in subsequent implementation phases.

Image credit: Lorrie Graham_AusAID, CC BY 2.0

1. Scope of the Social Safeguards Review

There are two components to the overarching project: firstly, the preparation of a detailed Development Plan for Portion 230, and secondly the preparation of a Master Plan with identification of supporting laws and regulations for the whole island. There are some basic common social safeguard requirements to both, however the plan for Land Portion 230 is somewhat more concrete, hence this review will largely concentrate on impacts surrounding this development.

i. Land Portion 230

Land Portion 230 is one of very few government-owned land portions on Nauru. It is located in the elevated interior of the island (“Topside” - see Figure 1 for map of Nauru showing Land Portion 230 location), has an area of approximately 10 hectares and based on preliminary work (subject to change) would appear to have capacity for some 80 single family houses, hosting a total population of up to approximately 500 people.

There are a number of key social safeguards issues relating to the potential development of Land Portion 230 (and, ultimately the broader area of Topside, should that be Nauru’s ambition). These include the identification, process and timing of who relocates. For example, would vulnerable population groups (whether vulnerable due to existing housing location, socioeconomic or other factors) be those targeted and prioritized, would relocation be subject to a market-based mechanism whereby individual families could bid for relocation (ie: with highest bidders to be those who are relocated), or are there other (including mixed or hybrid) approaches to be considered. Consideration must also be given to the land portions/houses that those relocating may be moving from, as well the requirements of the population that will ultimately live on Land Portion 230.

ii. Master Plan

The Master Plan will provide an illustrative documentation of the master land use vision established for development of the entire island of Nauru. A key component of the Master Plan is the demonstration of development opportunities for three infill sites, to improve the quality and quantity of housing of these sites, as well as more broadly improve the economic and social use of these spaces. These sites are yet to be determined. Key social safeguard considerations for the Master Plan phase, including

infill sites, are likely to be very similar to the above, albeit with further emphasis on stakeholder engagement, transparency, consent and grievance redress mechanisms, given that these sites will deal with land already privately owned and occupied.

SECTION 2.0 SCOPE OF THE SOCIAL SAFEGUARDS REVIEW

Figure 1: Map of Nauru, showing Land Portion 230 (inside red square). (Source: Design Workshop)

2. Nauru Population Profile and Demographics

Demographic information for Nauru provides preliminary insight into who might be more affected or less affected by the Master Planning process and/or the development of Land Portion 230, and what safeguards considerations might be appropriate. Access to land and housing are the critical vulnerabilities likely to exist, and so this information will be framed in this context. The following section covers population and demographic information, income distribution, livelihoods and food security, and a preliminary identification and discussion of vulnerable groups.

2.1 Population

The Republic of Nauru is located in the southwestern Pacific Ocean, 53 kilometers from the Equator. It is classified as one of the world’s smallest countries, covering a land area of just 21 km2. Its nearest neighbors are Kiribati to the east, Marshall Islands and Federated States of Micronesia to the north, and Solomon Islands to the west.

Historically, human habitation of Nauru has comprised Micronesian and Polynesian tribes, dating back some 3,000 years. The Nauru Bureau of Statistics reports the total population of Nauru at 11,550 (based on a mini census from 20191). The 2011 census reported a total population of 10,084 people, representing a relatively small, but present, average annual population growth rate of 1.8%. The completely urbanized population had a density of 478 people per km2, growing to 550 people per km2, making it the most densely populated Pacific Island state – even taking into account that 80% of the island is uninhabited due to the need for rehabilitation.

The population is mainly made up of native Nauruans (95.4% in 2019 mini-Census), with the remainder made up from i-Kiribati (2.1%), Fijian (0.7%), Tuvaluan (0.4%), Chinese (0.3%), Australian and New Zealand (0.2%) and other countries (0.8%). Australia has

operated its offshore Australian immigration detention facility - the Nauru Regional Processing Centre (RPC) – since 2001 (with breaks 2009-2011 and 2020). The Australian government reports 107 refugees as still residing in Nauru2, however it is understood that all are living under temporary visas in Nauru, outside of the Centre and presumably in government-arranged rental properties 3 .

2 DoHA, 31 July 2021 https://www.homeaffairs.gov.au/about-us-subsite/files/population-and-number-of-people-resettled.pdf

3 Refugee Council of Australia, 30 August 2021, Offshore Processing Statistics: How many people are on Nauru and PNG? https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/#:~:text=The%20numbers%20there%20peaked%20at,were%20 still%20690%20men%20there SECTION 2.0

2.2 Distribution of the Population

Nauru has 14 districts (shown in Figure 2). Household and population data4 is shown broken down by district and the distribution of households and population by district is shown in Table 1. The poorest area is considered to be Location, a sub area of Denigomodu, distinguished by its history as former workers accommodation for the British Phosphate Company in the late 70s and 80s.

Table

4 Republic of Nauru (RoN), 2014. Nauru Household Income and Expenditure Survey 2012/2013 Main Analytical Report (April, 2014). Bureau of Statistics, Department of Finance, Republic of Nauru.

The data suggests that Aiwo and Boe districts have by far the highest population densities. Meneng has a high population, but seemingly a larger area (though the data takes into account only total area, not only area suitable for dwellings). Reviewing satellite imagery, Denigomodu visually also has a high building density, which may not all be residential. As above, Denigomodu includes the sub-district Location, which is regarded as the most socio-economically vulnerable location in Nauru. SECTION 2.0

Figure 2: Population of Nauru by district (Source: Design Workshop)

1: Population and population density by district (RoN, 2014)

2.3 Demographics

Age: The 2019 mini census provides a population distribution pyramid (Figure 3), depicting a relatively youthful population. Factors possibly influencing the pyramid include high fertility, growing population, out-migration of Nauruans reaching employment age and/or lower life expectancies (including high prevalence of so-called lifestyle diseases). There are slight gender differences that are particularly noticeable comparing the 0-14 year and 50+ year age groups, again possibly due to outmigration and/or differing life expectancies. The 2011 Census noted that infant mortality rates (IMR) were improving but still high, and that this also had a slight gender discrepancy with the IMR being 39 for males and 27 for females (declining from 51 for males and 34 for females during the 2002-2006 period). Male life expectancy was recorded at 57.5 years, whilst female life expectancy recorded at 63.2 years (though these were interpreted as potentially higher than actual, as deaths could be underreported).

Marriage: A large proportion of the population 15 years and older is married (43.3%). 35.9% of the population has never been married and only a very small proportion are widowed (4.8%), separated (2.0%) or divorced (1.0%) (2019 Mini-Census). Significantly, the 2011 Census noted teenage fertility and marriage rates as high. 13% of females were already married by 19 years of age, compared with only 4% of males. The average age at marriage was 24.4 and 22.6 for males and females, respectively.

Education & Literacy: Nauruan is the native language of Nauru, although English is widely spoken, and education is mandated (under the Education Act 2011) for all children up to the age of 18: “Each parent of a school-age child must ensure the child is enrolled at school until the child completes the school year during which the child attains the age of 18 years.” However, in practice, the 2011 Census reports a decline from age 11 (96% attending school) to age 14 (88% attending) and further to age 16 (60%). Negligible gender differences were noticed until age 13, after which school enrolment rates for females were noticeably higher than for males. Approximately equal numbers (5%) of men and women have tertiary qualifications. The 2011 census did not directly measure literacy, and so educational level was used as a proxy, resulting in literacy rates >94% for the population over 15 years of age. Nauruan is spoken by 95% of the population, and English by 66% of the population. The 2015 Situational Analysis of Employment in Nauru 6 highlighted the need for further investment in human resource capacity, prioritizing especially education and training in trades such as construction and engineering, professions such as law, teaching and healthcare in order to reduce overseas labor dependency as well as to support seasonal work migration.

Religion: A significant percentage of Nauru’s population identifies with a religious denomination, and these are predominantly Christian. Only 2% of the population reported having no religion.

5 SPC, 2019, Population in Nauru. Available at: https://spccfpstore1.blob.core.windows.net/digitallibrary-docs/files/06/06fc7414bd5910467f54ab71d5785c92.pdf?sv=2015-12-11&sr=b&sig=dRR7gacKLPO9PzRUCyLLn9vBA46yrVCHBySKGBnmwDE%3D&se=2022-05-12T11 %3A25%3A39Z&sp=r&rscc=public%2C%20max-age%3D864000%2C%20max-stale%3D86400&rsct=application%2Fpdf&rscd=inline%3B%20 filename%3D%22Nauru_2020_Mini_Census_FS_Population.pdf%22

SECTION 2.0 DEMOGRAPHICS

6 ILO 2015 Situational Analysis of Employment in Nauru Available at https://www.unescap.org/sites/default/files/Situational%20Analysis%20 of%20Employment%20in%20Nauru.pdf

Figure 3: Nauru population distribution pyramid (Source: 2019 Mini-Census) 5

2.4 Income Distribution, Livelihoods and Food Security

Considered a high-income country by the World Bank,7 Nauru has had a volatile economic history. Significant income was made from phosphate mining since Nauru’s independence in 1968, however mining income has considerably declined since then. With current national sources of income limited (sale of fishing rights, revenue from Australia’s Regional Processing Centre, aid) there remains concern about ongoing debt and future economic resilience.

Poverty: This limited resilience and diversification flows down into individual income distribution and livelihoods. The 2013 Household Income and Expenditure Survey identified that whilst Nauru’s incidence of food poverty8 was zero, about 24 % of the population (16.8% of households) were below the basic needs poverty line9, with a further 28% vulnerable to fall below this line.

Employment and Income: From an employment perspective, the 2011 Census found the labor force participation rate to be around 64%, and significantly higher for men (79%) than women (49%). Of those employed, 93% work for private enterprise or government, with only 5% self-employed and only 25 people identifying as employers.

The 2012-13 Household and Expenditure Survey (HIES) showed that almost all households (93%) received cash income from waged/salaried employment. Property was deemed to also be a significant source of income: 46% of households received land lease payments, 42% royalties, 25% home rental and 9% received other propertyrelated income.

Remittances: Remittances are a recognized characteristic of many Pacific Island economies, however, as noted above, this is not the case for Nauru. The 2011 census identified only 1% of households received remittances, which make up just 0.2% of annual average household income. Of note, the National Sustainable Development Strategy identified a 2025 milestone of significantly increased remittances from

7 https://datatopics.worldbank.org/world-development-indicators/the-world-by-income-and-region.html

8 which includes a daily intake of 2,100 calories per adult per day

9 estimate of the cost of a minimum nutritional dietary intake plus the costs for non-food essential basic needs to achieve acceptable standard of living. Non-food essential basic needs include clothing, shelter, education, transport, communication, water, sanitation and health services.

Nauruan workers overseas.10

Agriculture and Food Security: In comparison to other Pacific island nations, subsistence income is substantially lower in Nauru, and Nauruans have little agricultural experience – which is one limiting factor to participation in international seasonal workers markets. Agriculture and farming activities are often linked to sustainable livelihoods, nutrition and food security, but have been compromised in Nauru due to the history of phosphate mining. This is likely a factor in the high prevalence of diabetes across the nation, and significant reliance on western (and processed) food imports. Food security is also a significant issue, as very little land is suitable or available for agricultural production, and most food is imported. Social surveys conducted for the poverty and social assessment noted that only 13% of households kept a kitchen garden and livestock production was low. Most households rely on imported frozen poultry for protein needs, supplemented by marine resources. About half (51%) of households undertake fishing, with ‘own consumption’ reported as the primary objective.11

Inequality: Nauru’s Gini coefficient12 (0.52 population, 0.37 households) suggests significant inequality, likely exacerbated by access to land, housing and employment alongside household size. This is at the higher end of inequality across Pacific Island nations.

10 RoN 2009 National Sustainable Development Strategy 2005 – 2025. As Revised, October 2009.

11 Republic of Nauru (RoN), 2014. Nauru Household Income and Expenditure Survey 2012/2013 Main Analytical Report (April, 2014). Bureau of Statistics, Department of Finance, Republic of Nauru

12 The accepted measure of the income distribution within a country. A higher Gini index indicates greater inequality, with high-income individuals receiving much larger percentages of the total income of the population.

2.5 Housing and Households

Housing market: The 2011 census identified that 82% of all households owned the houses they were living in. The rental market was evidenced as significantly smaller, with only 6% of households identifying as living in rental accommodation. Those renting were predominantly located in identified poorer areas, including 11% in Denigomodu and 15% in Location. Census data tallies with evidence from the ADB Sustainable and Climate Resilient Connectivity Project Relocation Plan Supplementary Reports,13 which suggest that there is a shortage of pro-poor housing and virtually no rental accommodation available for project-affected people requiring temporary housing. Relocation has been delayed and phased in order to allow time to address the issue.

Household sizes: The average household size reported in the 2011 Census is 6 people per household, which appears to have remained relatively steady since the 2002 Census. 105 (6%) households were recorded as having only one person, whilst at the other extreme, 55 households (3%) were reported to have more than 15 people.

Key service provision: The 2013 National Report on Population and Housing14 highlighted Nauru’s water challenges, identifying that 68% of households accessed water from a desalination plant and water dispatcher, 29% used rain catchment, 2% drew water from a well and the remainder used bottled water. Those relying on rain catchments included people located in Location (44%) and Boe (37%), indicating a socioeconomic component to water access. In terms of electricity, 99% of households in Nauru relied on the government for electricity supply. Internet access figures were updated in the 2019 mini census. 72% of the population reported accessing the internet from home, however 16% had not used the internet in the last 12 months. Usage of internet outside of the home or workplace appeared to be very rare (<2% in all cases). As would be expected, the mini-Census indicated that internet usage declined with age.

Image credit: DFAT photo library

2.6 Vulnerable Population Groups

The groups of people who are typically identified as at risk of vulnerability broadly include women, children, the aged, and persons with disabilities. Vulnerable groups often face challenges in realizing their social, economic, cultural, civil and political rights. This is largely as a result of unequal opportunities of participation and increased levels of discrimination. In Nauru, additional vulnerabilities are experienced by those who have limited or no ownership of land, and/or those who have limited or no family in Nauru (whether Nauruan or international citizens).

Gender: Gender inequality and vulnerability are recognized issues across the Pacific, where women experience inadequate political representation and participation in decision-making spaces, unequal employment access and opportunities and inadequate access to reproductive health options15. Gender based violence (GBV) is also recognized as a significant issue.16

In Nauru, whilst gender parity has been reached in primary education (and largely in secondary education), the proportion of women in paid employment is reported in the 2011 Census as significantly lower than men at all ages and women are overrepresented in typically female professions (e.g. clerical jobs). This is echoed by the large number of women (age 15-59) engaged in home duties as their sole economic activity (39% women vs. 12 % men from the same age group, with women typically becoming ‘homemakers’ from a young age).17 Internationally, there is recognition that household economic power is often vested in men (as higher wage earners), and that allocation of intra-household resources can be biased against more vulnerable members, leading to processes of unequal assets distribution. Gender differentials can negatively impact women’s access to and control of productive assets, which exacerbates their poverty and is often subsequently passed on to their children.

GBV is a recognized challenge, reported to be widespread with an estimated 48% of

15 These categories are recognised as employment, empowerment and reproductive health under the United Nations Development Programme 2020. Gender inequality index

16 E.g. https://pacificwomen.org/our-work/focus-areas/ending-violence-against-women/

17 ADB 2017 Poverty, Social and Gender Asssessment Nauru Port Development Project (Financede by the Asian Development Fund). Project Number: 48480 April 2017. Prepared by Cardno Emerging Markets. Available at https://www.adb.org/sites/default/files/project-documents/48480/48480-001-sprss-en_0.pdf ; Youth Monograph.

women in Nauru having experienced physical and/or sexual abuse in their lifetime18 Some action has been taken, with the Domestic Violence Committee established in Nauru in 201019 and a Safe House instituted in 2008 for protecting and providing shelter for women and children pending the processing of Apprehended Violence Orders. Whilst women’s equality is promoted by the Constitution of Nauru, statutory legislation is not yet adequate: for example, common law requirements for proving rape are limited to proof of physical resistance and prescribed legal age of consent. 20

Cultural and traditional barriers are reported as preventing many female candidates from standing in elections, and political representation has been low, though is improving. 21 A number of United Nations programs to empower and promote gender equality for women in Nauru exist/have been undertaken, recognizing the work that is still to be done: Women’s Economic Empowerment (WEE) Programme, Increasing Community Resilience through Empowerment of Women to Address Climate Change and Natural Hazards (IREACH) Programme and the Advancing Gender Justice in the Pacific Programme (AGJP).

Access to land: Access to land and housing is a significant challenge in Nauru, as highlighted by past projects (e.g. ADB Sustainability and Climate Resilient Connectivity Project to develop the Port, which required resettlement). Nauruans typically access land only via their family, posing problems for those without immediate family or who are not Nauruan (e.g. refugees from Australia). It is unclear whether this has flowthrough effects to age, gender or other inequalities given the likely power dynamics involved in inheriting land. There appears to be limited capacity on island to maintain good quality housing, further exacerbating inequalities with those living in vulnerable areas (e.g. Location) experiencing very low quality housing.

Age: The Nauru Poverty and Hardship Report Analysis of 2012 -2013 reveals that children and young adults are vulnerable in Nauru in the context of poverty. Youth

18 https://www.dfat.gov.au/sites/default/files/pwspd-nauru-summary.pdf ; https://asiapacific.unfpa.org/sites/default/files/pub-pdf/Nauru_family_health_support_survey_report_2014.pdf

19 Nauru Ministry of Home Affairs, Australian Aid and UNFPA (2014). Nauru Family Health and Support Study. Nauru

20 The Human Digest Trust. Reform of Discriminatory sexual offences law in the commonwealth and other jurisdictions: Case study of Nauru

21 Ibid.

SECTION 2.0 VULNERABLE POPULATION GROUPS

between the ages of 15 to 34 comprise half of the labor force in Nauru (despite significant unemployment in age ranges 15-19, and few young people 15-24 in paid work). Most youth enter the labor force early due to financial pressures, including those of their families. However, many youth are employed in unpaid work 22 .

Older Nauruans have also typically been recognized as vulnerable. Nauru has a low life expectancy of 58 years old for men and 65 for women, in part due to high levels of non-communicable/‘lifestyle’ diseases including high levels of obesity, Type 2 Diabetes, heart and kidney disease23. The incidence of basic needs poverty among the elderly (defined 60+) was reported as 23% in 2012/1324, with no significant gender gap though widowed persons were considered to be particularly at risk.

Income: Salaries and wages constitute the major source of income for Nauruans (58%) – and as a result, households that have individuals in employment are classified to be least vulnerable. Poorer households are typically those then who have lower or no wages and property income. However, the Nauru Hardship and Poverty Analysis Report 25 further showed that male headed households are overrepresented amongst the poor despite being employed in the public or private sector – the reasoning suggested being that in some cases, this income may be relied upon to sustain an entire household26 . The report further shows that students, retirees, unemployed and individuals engaged in home duty activities are more susceptible to income vulnerability.

The Nauru Hardship and Poverty Analysis Report further identified the gendered nature of income in Nauru, finding that females headed up 35% of all households, and that these households were slightly overrepresented in the poverty and low expenditure categories 27.Statistics from the survey show that the larger proportion of 39% of females in the working age group between 15-59 years, often took up domestic

22 United Nations Population Fund. Youth Monograph. Analysis of the 2011 Nauru Population and Housing Census.

23 https://globalnutritionreport.org/resources/nutrition-profiles/?country-search=nauru

24 Nauru Hardship and Poverty Analysis Report of 2012-2013- Household Income and Expenditure Survey

25 Ibid

26 Ibid

27 Ibid

duties as opposed to formal employment in the private or public sector in comparison to males amounting to 12% within the same age group.

As identified above, there is not a strong remittance culture (yet) in Nauru. This, together with the low diversity job market and lack of entrepreneurial opportunities, likely further exacerbates vulnerabilities.

Disability: Just over 5% of the population was identified in the 2011 Census as having some form of disability, with half of these persons aged over 40 years, illustrating a strong age component.

2.7

Summary: What are the implications of the demographic information on this project?

The following summarizes key implications and considerations for the development of Land Portion 230 and master planning vision for Nauru, based on the demographic information provided above:

1. The population is primarily Nauruan, so there is no need to separately consider Indigenous Peoples as a vulnerable population. Conversely, it may be important to consider adverse impacts on non-native-Nauruan populations.

2. The highest population densities appear to be in the southern districts, which likely also align with the location of key services (including the airport). It is not clear from available information if these denser areas also contain poorer housing – further inquiry is necessary. In considering the mechanism by which people will move to Land Portion 230, and the Master Plan process, it will be necessary to consider the impacts on existing areas, and to ensure that those currently vulnerable to overcrowding, housing shortages, low quality housing and low accessibility to services also benefit from this process.

3. Demographic information shows a younger population, which should be considered in the design and allocation of Land Portion 230, as well as the Master Plan. Children and young adults were seen to be particularly vulnerable to poverty in Nauru. Further engagement is necessary to determine preferences around living arrangements.

4. Nauruan is the native language, and it will be important for awareness, engagement and consultation materials to be equally available in this language. Equally, whilst internet access and usage is high, usage declines with age, and so both digital and non-digital measures of communication will best support the project.

5. Approximately half of Nauru’s population is considered to be either under (24%) or at risk of falling under (28%) the basic needs poverty line. Access to critical services, food security (including access to fishing), employment etc. will all need to be fundamental considerations for the master plan, as will considerations of key demographics including youth, women and the elderly (both individually, and at household scale).

6. Access to land and housing is a core driver of this work, and a key issue for many Nauruans.

a. There appears to be a significant shortage of rental housing, that particularly leads to vulnerabilities in the non-Nauruan populations, and for those Nauruan’s without strong (local) family connections. This is an important consideration for the development of new housing on Land Portion 230 and under the master plan – both during development (if there is a need for nonNauruan’s to support the construction process over medium-longer term timeframes) and following.

b. The land and housing shortage in general has likely contributed to poorer quality housing and a lack of general maintenance and capacity to maintain good homes. Key considerations around this will be necessary if temporary worker accommodation is needed, and in terms of building local capacity.

7. With limited employment diversity, there may be a need for the project to consider sustainable and transparent procurement processes, and best options for hiring a labor force that promotes local capacity growth over the long-term.

8. Governance and development processes are unlikely to be sustainable or effective if they do not take into account women’s inclusion and participation in the promotion of equality. Despite gender commitments that have been made by the Nauru government in achieving equality, the contributions and perspectives of women continue to be in the periphery of governance and development agendas 28 .

9. Gender based violence is a sensitive topic, that is likely underreported, and is a likely component of gender inequity challenges. Design options and research that may assist in supporting victims, addressing perpetrator behavior and the underlying culture of GBV should be considered. For example, an analysis by the Women’s Affairs Department reflects that peer pressure and stigma created as a result of lack of privacy by communities have negatively impacted reporting 29

Secretariate of the Pacific Community, Noumea, New Caledonia. Stocktake of the gender mainstreaming capacity of Pacific Island governments Nauru 2015

3. Safeguards Policy Context & Frameworks

Having identified some of the general vulnerabilities within the Nauruan population above, this section now turns to safeguarding and the measures by which projectspecific vulnerabilities can be systematically identified and addressed.

Safeguards are measures that protect people or things (e.g. the environment) against (often inadvertent) undesirable or harmful outcomes. A number of development partners have established Safeguard Policy Frameworks, which include operational policies that seek to avoid, minimize or mitigate adverse environmental and social impacts, including protecting those whose rights are likely to be affected or marginalized by a specific development 30. Use of development partner frameworks is typically a requirement of development partner funding, depending on the maturity of national (country) safeguard systems.

30 E.g. ADB (2009) Safeguard Policy Statement, https://www.adb.org/sites/default/files/institutional-document/32056/safeguard-policy-statement-june2009.pdf June 2009

Image credit: Sean Kelleher from Melbourne, Australia, CC BY-SA 2.0

3.1 Development Partner Safeguarding Policies

The range of policies varies between development partners, as shown in Table 2.

Table 2: Safeguard Policy Frameworks of relevant development partners

Environmental Protection

Indigenous Peoples

Displacement and Resettlement

Children, vulnerable and disadvantaged groups

Health and safety

Environment

Indigenous Peoples

Involuntary Resettlement

*Gender Equity

*Disclosure

• This document does not explicitly address environment, but given the existing damage to Nauru, it would be difficult to do further harm. Certainly, though, there are many actions needed to improve environmental conditions and environmental improvement (including through the management of water, sanitation and other services) and these should remain core to the project.

Environmental Assessment

Natural Habitats

Pest Management

Involuntary Resettlement

Indigenous Peoples Forests

Physical Cultural Resources

Safety of Dams

Projects in Disputed Areas

Projects on International Waterways

Table 2 implicitly indicates that there have been three common themes throughout safeguarding practice: environment, involuntary resettlement (and displacement) and indigenous peoples. In the context of Nauru and Land Portion 230/Master Planning, this is quite a narrow framing of preventing undesirable outcomes and few apply:

31 DFAT, 2019 Environmetnal and Social Safeguard Policy. Updated March 2019 (version 1.4) https://www.dfat.gov.au/sites/default/files/environmental-social-safeguard-policy.pdf

32 ADB (2009) Safeguard Policy Statement, https://www.adb.org/sites/default/files/institutional-document/32056/safeguard-policy-statement-june2009.pdf June 2009. At time of writing, the ADB’s Safeguard Policy Statement is under review. This has been influenced by recent updates to other multilateral financial insittution safeguard frameworks, which have considerably braodened the scope of safeguarding frameworks.

33 The World Bank (2016) World Bank Environmental and Social Framework https://thedocs.worldbank.org/en/doc/8377215227620501080290022018/original/ESFFramework.pdf World Bank, Washington D.C. See also ESF Webpage: https://www.worldbank.org/en/projects-operations/environmental-and-social-policies

• With 95% of the population recognized as native -Nauruan, it is broadly recognized that there is no need to specifically consider the risks/benefits to indigenous peoples.

• The premise of this work is voluntary resettlement (and Nauru has no legal provision for compulsory acquisition). Safeguarding tools will be helpful to guide thinking around the process, in particular in relation to ensuring improved outcomes for affected people and stakeholder engagement and consultation, but development partners are unlikely to raise any concerns on this point.

• DFAT’s policy on Children, Vulnerable and Disadvantaged Groups is likely to be applicable, providing guidance on how to identify the impacts on these groups and how these impacts can be managed.

Recognizing the uniqueness of the Pacific region, A Shared Approach for Management of Environmental and Social Risks and Impacts for Pacific Island Countries (henceforth: Shared Approach) was developed by the Pacific Region Infrastructure Facility (PRIF), to which ADB, DFAT, World Bank and a number of other development partners contributed. This document was developed not to replace existing safeguard policy frameworks, but to recognize the specific policy requirements of Pacific nations and Pacific projects, and to set out methods and procedures that may be more suitable to unique Pacific challenges and conditions. It also provides some guidance in the preparation and implementation of country safeguard systems. In addition to the safeguards identified by other development partners, the Shared Approach highlights the following topics and issues of relevance to Nauru:

• Land and Livelihoods, and Means of Obtaining Land Access, including voluntary and negotiated methods of accessing land for development purposes. This may support broader thinking around alternative approaches to accessing land for

SECTION 2.0 DEVELOPMENT PARTNER SAFEGUARDING POLICIES

DFAT31 ADB32 World Bank33

infrastructure and other needs under the master plan, and may provide a basis for thinking about land tenure options for Land Portion 230 and beyond.

• Stakeholder Engagement, Meaningful Consultation; and Disclosure, and Grievance Redress Mechanisms (GRM), including key definitions, attributes and possible templates. Whilst these topics are covered, and templates are available through many development partners, guidance specific to the Pacific context will be helpful for this project. Engagement, consultation, disclosure and GRM will all be essential to decisions around the mechanism for deciding who moves to Land Portion 230, what happens to land and housing ‘left behind’ by those moving to Land Portion 230 and determining the design implications of the master plan in terms of the impact on vulnerable populations (e.g. accessibility, crime, climate change resilience, livelihoods, etc.).

• Social impacts of Construction Workforce and Labor, recognizing that importing labor from overseas can have a significant impact on small populations like Nauru, in particular accessing housing and food, potential risks (e.g. crime, unrest) if hosting large numbers of people in a small area. Where possible the guidance is to seek to prioritize the hiring of local people, especially if this will support the development of local industry and growth and domestic retention of critical skills. Additionally, a transparent and well document procurement plan is necessary to ensure fair and equitable procurement processes that do not promote or enable corrupt practices.

• Child Protection, Gender Based Violence, and Sexual Exploitation, Abuse and Harassment, DFAT and other donors have zero tolerance policy approaches in these fields. GBV in particular is a significant challenge across the Pacific, which may be exacerbated through imported labor, relocation and project uncertainties (brought about by low levels of disclosure). Tools and policies are provided by DFAT (alongside others) to ensure that all are aware of the risks and project implementers commit to agreed standards.

The Shared Approach provides guidance on when in the project cycle to apply safeguarding tasks (see next section), and the mainresponsibilities across executing agencies, implementing agencies, development partners and contractors.

Across the application of development partner safeguarding policies and policy frameworks it is important to note that all prioritize the application of national safeguard systems in the first instance. Country safeguards systems are then augmented as necessary through the identified policies. Nauru’s national legislation and policies are still relatively immature in addressing safeguarding risks – Annex 2 provides a 2016 comparison of Nauru’s country safeguard framework to the ADB SPS. Whilst this is now a little outdated, it does provide a basis for identifying where future gaps may need to be filled at a country level, noting that this is not immediately required for this project.

Image credit: unwomenpacific

3.2 Safeguards in the Project Cycle

This section outlines how and when the safeguards process is applied during a project. Exact details are determined by the type of project, and the role of the Government of Nauru and any development partners.

A typical project cycle encompasses (simplistically): project identification, feasibility assessment, appraisal, approval, detailed design, implementation of civil works and evaluation/audit. The Land Portion 230 and Master Planning ‘vision and feasibility’ project is still largely in stage 1 moving toward stage 2. This means the project is confirming the rationale, undertaking scoping to assess current conditions, and sketching possible project components, and establishing the full suite of requirements for further work. At this stage, in terms of safeguards, some screening and consideration is necessary to decide the likely level of safeguards assessment and management required. Table 3 sets out the safeguarding components of this and later stages, including identification of key reports that may be required.

Project Phase Project Actions

• Confirming project rationale;

• Scoping to assess current conditions;

1. Identification

• Identifying possible components;

• Establishing the core requirements for work.

Safeguarding

elements

relevant to each phase

• Review status/local experience with Grievance Redress Mechanisms.

• Review potential approaches for information disclosure.

• Identify land requirements and existing ownership/ tenure arrangements.

• Early engagement with regulatory agencies

• Decide likely level of safeguards assessment and management required

Milestone: Project Concept Note

• Project planning: including technical, economic, financial, social, environmental, and political viability elements.

Table 3: Safeguard activities mapped against the project cycle (adapted from PRIF, 2017).

2. Feasibility

• Initial project preparation and assessment, including terms of reference for design and supervision specialists and contractor.

SECTION 2.0 SAFEGUARDS IN THE PROJECT CYCLE

Key Documents

• Initial risk assessment and screening

• Key stakeholder identification and engagement planning

• TOR for project safeguards reporting, if required.

• Baseline data collection and analysis.

• Establish social and environmental safeguards acceptability.

• Detailed environmental and social impact studies and resettlement planning are done at this stage as required.

• Community/stakeholder contribution to design process

• Consultation with landowners and stakeholders.

• Scoping and alternatives analysis informing project design.

• Preparation of Stakeholder Engagement Plan (SEP, identifying Grievance Redress Mechanisms)

• Environmental and Social Impact Assessment (ESIA) drafted as necessary.

• Land Acquisition Plan if necessary (developed and disclosed)

Milestone: Basic Design

• Evaluation by lead funder (government, development partner, etc.) for technical and economic feasibility, social acceptability, and environmental and social impacts and mitigation.

• Approval for project implementation given if appraisal is positive.

• Safeguard elements completed to date appraised/approved.

• Requisite approvals and consents secured from regulatory agencies as appropriate.

• The civil works component is implemented, including any safeguarding requirements.

• Implementation and monitoring of policies/frameworks developed.

• If physical displacement/ resettlement is required livelihood restoration measures may extend after civil works have been completed.

Milestone: Decision Meeting/Appraisal/Approval

• Establishment of Project Management Team

• Project components, locations and project area boundaries are defined.

• Labor requirements defined

• Bid and contract documents prepared.

• Detailed design report (DDR) produced.

• Environmental and social mitigation measures produced during the feasibility studies stage are updated based on the detailed engineering design.

• Community informed of design details, impacts and how feedback was incorporated.

Milestone: Contracts Awarded

• Updated ESIA and Management Plan as necessary.

• Implementation of SEP

• GRM established and information disseminated.

• Land-related agreements finalized (e.g. land access plans, land acquisition and resettlement plan, etc.)

• Negotiated Agreements with Memorandum of Agreement (MOA) as required.

• Ongoing monitoring and community consultation, GRM, small-scale complaints handling and disclosure.

• Adaptation of policies as required.

• Site-specific ESIA and management plans may be developed/ implemented prior to civil works as required.

Milestone: Project Implementation Completion Report (with interim implementation and monitoring reports as defined).

• Project is evaluated by client and major partners.

• Safeguarding measures are evaluated/audited and further effort identified if needed.

Milestone: Post-Project Reporting/Evaluation

From Table 3, it’s clear that there are a number of reference key documents that may be useful for projects such as this to identiy what is needed and monitor and document safeguard processes. These are listed below (Table 4) with links to template examples. SECTION 2.0

3. Appraisal/ Approval

4. Detailed design

5. Implementation

6. Evaluation/ Audit

Table 4: Key reference documents for social safeguarding activities

Document Purpose

Stakeholder Engagement Plan

Environmental and Social Impact Assessment

Environmental and Social Impact Management Plan

Grievance Redress Mechanisms

Define the key stakeholders and appropriate scheduling and format of information dissemination, engagement, consultation and feedback.

Provides a framework and process for predicting and assessing potential environmental and social impacts of a project, evaluating alternatives and designing appropriate mitigation, management and monitoring measures.

Sets out material measures, actions, specific documetns and plans, and timing for these.

Ensure project implemntation in accordance with accepted Environmental and Social Standards. Provides guidance on what should be addressed, noting that project risks will impact project complexity and the necessary level of detail.

Example Template link

World Bank Template34

Example from IUCN35

World Bank Environmental and Social Commitment Plan (ESCP) Template36

World Bank Checklist Template37

Resettlement Plan/Framework

A Resettlement Plan38 (or Resettlement Action Plan - RAP) specifies the procedures to be followed and the necessary actions to appropriately resettle and compensate affected people and communities.

ADB example from the Sustainable and ClimateResilient Connectivity Project (Nauru)39

34 https://pubdocs.worldbank.org/en/909361530209278896/ESF-Template-ESS10-SEP-June-2018.pdf

35 https://www.iucn.org/sites/dev/files/iucn_esms_esia_guidance_note.pdf

36 https://pubdocs.worldbank.org/en/222861541013090414/Environmental-social-committment-plan-template.docx

37 https://pubdocs.worldbank.org/en/354161530209334228/ESF-Checklist-ESS10-GRM-June-2018.pdf

38 Resttlement Action Plans must meet environmental mimimum qualities such as air, water and noise. They must allow affected communities to continue accessing cultural and religious resources and take into account tenure security, communities access to sufficient size and quality land for pasture, fishing and hunting. They must further maintain community networks,avoid steering conflicts amongst communities. They should also promote full social inclusion with special consideration for vulnerable groups. They should encourage projects to be framed in ways that enable communties to access markets, employment, economic opportunities and enable re-establsihement of businesses.

39 https://www.adb.org/projects/documents/nau-48480-003-rp

SECTION 2.0 SAFEGUARDS IN THE PROJECT CYCLE

Image credit: DFAT photo library

3.3 Role of Stakeholder Engagement and Consultation

A critical foundation of social safeguards in practice is the need for meaningful stakeholder engagement and consultation. Whilst general good practice for all projects, meaningful consultation, ‘free prior and informed consent’ (FPIC) and ongoing engagement are all critical elements of international good practice in development. ‘Stakeholders’ in this instance are all peoples or entities who may be affected by or have an interest in the proposed project and its objectives; engagement means not simply awareness raising but reflecting comments and concerns throughout the design of the project. A Shared Approach for Management of Environmental and Social Risks and Impacts for Pacific Island Countries relates how and when the three distinct communication activities – information disclosure, consultation and grievance redressshould be conducted throughout the project cycle. A copy of this is included at Annex 2.

Another good resource 40 recognizes that stakeholder engagement is a process with no ‘one-size-fits-all’ approach, which should be implemented systematically and flexibly, adopting principles of proportionality (with the level of risk guiding the level of engagement). 10 elements of meaningful stakeholder engagement are identified and mapped across the project cycle, depicted in Table.

Identification of priority issues

Stakeholder analysis and engagement plan

Prior information

Appropriate forums and methods

Documentation, disclosure, feedback

Design and implementation decisions

Baseline data and action plans

Table 5: Elements of meaningful stakeholder engagement (Revised from Kvam, 2019)

40 Kvam, R. (2019) Meaningful stakeholder engagement: a joint publication of the Multilateral Financial Institutions working group on environmental and social standards Published by the Inter-American Development Bank.

Management System

Grievance mechanisms

What are the likely risks and opportunities arising from the project, and that are of concern or interest to stakeholders?

Who is affected by the project, and who has an interest that can influence outcomes?

How will information be provided to stakeholders prior to consultation and consultation events in a meaningful way?

How should consultation events be organized?

How will the stakeholders be informed about project decisions and how their views and inputs have been addressed?

How will stakeholder inputs be considered and addressed in decision-making/ management?

Have appropriate data, indicators and benchmarks been established?

How will the project establish/maintain an adaptive management system to address environmental and social issues?

How can stakeholders seek remedy if they feel the project is causing harm to them or the environment?

What mechanisms ensure stakeholders are kept informed and involved throughout project implementation and beyond? SECTION

Ongoing stakeholder engagement

4. Identified Project Risks

Safeguards are fundamentally about risk and reducing the risk of harm to people and environment. Where risks are perceived to be higher (e.g. in the context of involuntary resettlement), or where projects are considerably complex, then it is even more important to ensure that sufficient, and sufficiently detailed, mechanisms and controls are in place to manage risk.

Annex 6 provides an outline of some of the identified social safeguarding risks of particular relevance the development of land portion 230 and the Master Plan, which have been identified in the project Risk Register. These flag the need for a wide and comprehensive approach to protecting the interests of all Nauruans, in order to achieve the Higher Ground Initiative’s aim of a resilient Nauru. These are included here to inform the summary identification of key considerations, and to provide a basis for discussion and potential reduction with the internal project team and HGI steering committee as appropriate.

Key social safeguards-related risks can be summarized as:

• Inadequate communication and engagement: leading to a lack of buy in from the Nauru government and Nauru citizens; possibility of solutions that do not benefit, or do not sufficiently benefit all Nauruans; and ultimately a design that is not fully implemented, reports that simply remain on the shelf.

• Lack of equity, lack of transparency: leading to a small number of Nauruans grossly benefiting at the expense of many others, especially those identified as most vulnerable. This is a particular risk given land interests present in Nauru, the lack of reliable land ownership records and history of land disputes.

• Insufficient transfer of knowledge and local capacity building: leading to unsustainable solutions or solutions that are unable to be implemented without development partner or contractor support. Similarly, may result in designs that use unsustainable or unsuitable materials due to insufficient knowledge transfer to the contractor.

• Social harm: whereby designs (and/or the process of developing the design) not only do not benefit all population groups, but may inadvertently cause harm to individuals or groups. SECTION

PROJECT RISKS

4.1 Key Social Safeguard Considerations and Next Steps

The following summarizes the key considerations for the project, and possible next steps that could be undertaken.

1. Stakeholder engagement and consultation is critical to the future success of Land Portion 230, infill development and the master plan.

Key steps:

i) Identify key stakeholders

ii) Develop a preliminary stakeholder engagement plan to inform engagement across the three activities (land portion 230, infill development and master plan), particularly addressing processes for disclosure, meaningful consultation and grievance redress mechanisms.

iii) Identify and assess key risks, particularly with respect to vulnerable groups (building on the information in this report).

2. The premise of the project is that Nauru citizens will voluntarily resettle. This will not require a formal Resettlement Plan, but it will likely be useful to review these tools and mechanisms to inform key processes.

Under ADB policy it is required to ensure that people who enter into negotiated settlements in land acquisition or use of land in leasing will maintain the same or better income and livelihood status. Consultation will be essential to ensure acceptability of project design and processes, ensuring that the project remains on time, in budget and is sustainable.

The Nauru Government and project team will need to comprehensively consider the arrangements by which individuals/families will acquire land and housing (on land portion 230, and/or appropriate reallocation or consolidation mechanisms for infill and/ or master planning). This includes thinking through who will be selected/prioritized, who will benefit, what responsibilities and/or payments might come with these benefits, etc. It will certainly be essential that all processes are formally documented, transparent, available and well-communicated and discussed.

For example, one tool used by the ADB is a Memorandum of Agreement (MOA), typically used as part of a negotiated agreement process between affected households and project sponsor, with third party verification. The MOA establishes that consultation has been undertaken meaningfully, freely and in good faith; terms of negotiated agreement and mechanism of exchange is accepted.

Consideration should also be given to what happens during project preparation, implementation and beyond the life of the project. For example, temporary housing may be needed whilst infill projects are being developed. Post-project examples might include ongoing maintenance, dispute resolution and sustainable funding mechanisms for government service provision.

Key steps:

i) Review resettlement plan materials

ii) Development an ‘Options Report’ that identifies potential mechanisms and their opportunities/risks

iii) Identify if there will be target groups to specifically benefit from relocation,

iv) Develop a preliminary resettlement plan that addresses necessary processes, linking closely with the SEP.

v) The development of a preliminary project description in enough detail to understand the proposed physical, land, population, cultural & socioeconomic components of the proposed relocation.

3. Addressing vulnerabilities: women, children, landless, vulnerable and disadvantaged groups

Key questions remain around how those most vulnerable and at risk will benefit from the project. In order to be able to carry out a satisfactory safeguards screening, the study team needs to understand/agree upon:

SECTION 2.0 KEY CONSIDERATIONS AND NEXT STEPS

• Proposed target group(s) (if any) for relocation

• What mechanism/s might be used to allocate land and housing packages on Land Portion 230, and in infill sites. The transfer mechanisms should satisfy social safeguarding principles.

• What proportion of the site would contain housing for various vulnerable groups, if at all (including households below the poverty line, those presently landless, the elderly, disabled, woman-headed households, etc.)

Safeguard screening may require additional scoping and procurement of studies, and these may require planning and budgeting by the Government of Nauru, or other development partners.

Key Next Steps:

i) Ensure SEP and preliminary resettlement plan adequately account for identified vulnerabilities

ii) Design in the key needs of vulnerable groups (i.e.: addressing landlessness, homelessness, food insecurity, etc.)

iii) Identify needs for further studies and seek appropriate budget.

4. Health and Safety

Given the existing poor quality housing, vulnerable communities (e.g. Location) and prevalence of gender based violence and youth inequalities, there is a need to design housing and spaces that promote healthy livelihoods, community engagement and individual safety. These might include design aspects that enhance and build upon an existing sense of community, opportunities for physical activity, household as well as larger scale agriculture and farming. The design process similarly needs to recognize that these processes are not solely design-oriented, but are fundamentally about public awareness, collaboration, consultation and engagement.

5. Legal Framework

Prior review of Nauru’s country safeguards framework suggests that some work is needed for it to sufficiently underpin a project such as this. In the short-term, development partner documents are sufficient, but consideration should be given to the medium- and long-term needs for Nauru in terms of infrastructure and the legislative underpinnings of social safeguards.

Key Next Steps:

i) Review documents and identify need for legal reform: Are new laws necessary? Can existing laws be made clearer and more effective?

ii) Stakeholder engagement will likely be necessary if compulsory acquisition is to be adopted (Nauru is the only Pacific state not to legislatively allow for compulsory acquisition).

6. Institutional processes

There is a clear need for institutional strengthening and support to enable capacity over time to manage procurement processes, ensure sustainable budgeting and ultimately make for a resilient and sustainable Nauru.

SECTION 2.0 KEY CONSIDERATIONS AND NEXT STEPS

6. References & Bibliography

ADB Safeguards Policy Statement 2009

ADB Safeguards Policy Statement Review and Update Policy Architecture Study Draft for Consultation Sept 2002

ADB Nauru: Sustainable and Climate-Resilient Connectivity Project Resettlement Plan June 2021

ADB Nauru Sustainable & Climate-Resilient Connectivity Project Communications & Consultation Plan (CCP) 2021

ADB NAURU: Port Development Project Initial Environmental Examination March 2017

ADB Nauru: Port Development Project: Poverty, Social and Gender Assessment April 2017

ADB Safeguards Due Diligence Report Sustainable and Climate Resilient Connectivity in Nauru – TRTA Updated 2020

Republic of Nauru (RoN) 2011 Bureau of Census and Statistics Census of Population 2011

Republic of Nauru (RoN) 2017 Bureau of Census and Statistics Census Update 2017 Pacific Region Infrastructure Facility (PRIF), 2021. A Shared Approach to Management of Environmental and Social Risks & Impacts for Pacific Island Countries March 2021

Republic of Nauru (RoN), 2014. Nauru Household Income and Expenditure Survey 2012/2013 Main Analytical Report (April, 2014). Bureau of Statistics, Department of Finance, Republic of Nauru.

SPC, 2019, Population in Nauru. Available at: https://spccfpstore1.blob.core.windows. net/digitallibrary-docs/files/06/06fc7414bd5910467f54ab71d5785c92.pdf?sv=2015-1211&sr=b&sig=dRR7gacKLPO9PzRUCyLLn9vBA46yrVCHBySKGBnmwDE%3D&se=202205-12T11%3A25%3A39Z&sp=r&rscc=public%2C%20max-age%3D864000%2C%20max-stale%3D86400&rsct=application%2Fpdf&rscd=inline%3B%20 filename%3D%22Nauru_2020_Mini_Census_FS_Population.pdf%22 SECTION 2.0

Annex 1: Overview of ADB’s Safeguard Policy Statement 2009

From: https://www.adb.org/sites/default/files/institutional-document/691456/spru-sepdraft-20210407.pdf

The SPS provides an overarching statement on ADB’s commitment to environmental and social sustainability, that sets out three policy objectives: (i) to avoid adverse impacts of projects on the environment and affected people, where possible; (ii) to minimize, mitigate, and/or compensate for adverse project impacts on the environment and affected people when avoidance is not possible; and (iii) to help borrowers/clients to strengthen their safeguard systems and develop the capacity to manage environmental and social risks. 6. The SPS has three sets of Safeguard Policy Principles (see Figure 1) covering: (i) Environmental Safeguards (ENV), (ii) Involuntary Resettlement Safeguards (IR), and (iii) Indigenous Peoples (IP) Safeguards. In addition, it also provides a description of the policy delivery process, roles and responsibilities of ADB and its borrowers, and monitoring and implementation arrangements. The policy includes a structured process of impact assessment, planning, and mitigation to address the adverse effects of projects throughout the project cycle. It requires that (i) impacts are identified and assessed early in the project cycle; (ii) plans are developed and implemented to avoid, minimize, mitigate, or compensate for the potential adverse impacts; and (iii) affected people are informed and consulted during project preparation and implementation. The Safeguard Policy applies to all ADB-financed projects, including private sector operations, and to all project components.

ADB’s role in the delivery of safeguards is to explain policy requirements to borrowers/ clients, help borrowers/clients meet those requirements during project design and implementation, ensure due diligence and review, and provide monitoring and supervision. Considerable attention is devoted to the project design and approval phase, although ADB’s role in monitoring safeguard compliance continues during project implementation. ADB’s project completion reports, and project performance evaluation reports include reviews of safeguard implementation.

Annex 2: A Shared Approach Stakeholder Engagement

Key Attributes for Effective Stakeholder/Community Engagement

Source: PRIF, 2021. A shared approach for management of environmental and social risks impacts for pacific island countries. https://theprif.org/document/regional/genderand-social-safeguards/shared-approach-management-environmental-and-social

In the Shared Approach, stakeholder/community engagement encompasses three distinct but related communication activities – information disclosure from project proponents to relevant communities (or the broader public), consultation between project proponents and relevant communities, and grievance redress procedures by which community members can seek remedial action from project proponents. Each of the three activities has key attributes, as follows:

Information Disclosure

The purpose of disclosure is to ensure that persons potentially affected by a proposed development project (as well as other potential project stakeholders) are informed about project goals, activities, timing, likely benefits or adverse impacts, or other aspects of relevance to them. To be effective, disclosure must be timely; there is little purpose in providing information after the opportunity to act upon it is lost. Disclosure is conducted in an accessible location and language. In some instances, special effort may be advised to enable information to be accessible to women or other groups who otherwise may be excluded. Though much of the disclosure is likely to occur in early phases of the project cycle (identification, project preparation and assessment, and detailed design), disclosure may also be necessary in construction and operation phases in response to changing circumstances.

relating to the proposed project. Consultation refers to a variety of informal and formal activities, ranging from casual and sporadic conversations with community members to official community hearings. Often, the ESIA (or other screening or assessment exercise) serves as the primary vehicle for local consultations. To be effective, consultation should be recognized as an inherently qualitative process. It should be timely; it should be done when there is ample time in the process to influence decisionmaking with regard to the proposed project, its design, its implementation arrangements and its operation. It should be inclusive; the views of traditional leaders should be supplemented with views of others to be directly affected by the project, including those (women, minorities) whose participation in deliberative processes may be discouraged. It should be open; consultation should be conducted in a manner conducive to frank discussion, without interference or fear of reprisal. And it warrants a response; the project proponents or representatives should explain how consultation results are to be used in project assessment and design, should subsequently summarize and disclose consultation results, and should formulate responses to communities on key issues or concerns that are raised. Consultation is especially important in formulating project design and plans. In these early stages of the project cycle, consultation may be undertaken as a key input for an ESIA process, as a separate activity, or both. But consultation also is intended to continue throughout the project cycle, through implementation monitoring processes or other means.

Grievance Redress Mechanisms

Consultation

The fundamental purpose of consultation is to enable project proponents to be informed about community perspectives, preferences, concerns and constraints

The fundamental purpose of grievance redress is to enable responsive and fair treatment for those who claim to have been harmed in the development process, either through imposition of adverse impacts, through abridgement of rights, or through inadequate or inequitable application of project processes. To be effective, grievance redress should be systematic, with an established and disclosed set of procedures. It should be accessible and affordable. It should be structured to be capable of rendering impartial results, in a manner independent from project management. And it should be responsive, with established performance standards and procedures for replying to those raising claims. In many cases, traditional dispute resolution processes may be

more established and more effective than those that may be specifically established for project purposes. Care must be taken, however, to verify that traditional processes can accommodate the range of issues that may arise in a development project, and are adequately objective and responsive to claims raised. In some instances, a projectrelated grievance redress mechanism may be an alternative means of appeal for those dissatisfied with the results of traditional processes, or those who do not expect to be treated fairly in traditional processes. It also is essential to inform claimants that they retain recourse to legal action, as a last resort. The GRM is required to be readily accessible, culturally appropriate and gender sensitive. In some cases, the requirements for a GRM to be both culturally appropriate and gender sensitive can be difficult. Understanding gender and youth dimensions within cultural settings is key to designing consultation and GRMs that facilitate meaningful engagement with men and women while respecting customary/traditional leadership roles and systems. Grievance redress processes are assessed or designed in the early phases of the project cycle, and should be functional as project design and plans become final and the construction phase begins. Some form of grievance redress should remain accessible throughout the operational life of the project.

Image credit: Lorrie Graham

Annex 3: ADB Resettlement Principles and Actions Required

ADB Resettlement Principles Actions Required to Facilitate Portion 230 & Matters Arising

(i) Undertake project screening, including the scope of resettlement planning through a survey and/or census of displaced persons.

(ii) Carry out meaningful consultations with affected persons, host communities, and concerned nongovernment organizations, with ongoing information, communication, monitoring and evaluation of resettlement programs.

(iii) Pay particular attention to the needs of vulnerable groups, especially those below the poverty line, the landless, the elderly, women and children, and those without legal title to land, and ensure their participation in consultations.

A randomised survey as part of the Stakeholder Engagement Plan as to how Nauruans perceive relocating to Portion 230 if given the chance. Note that such a survey should be gender sensitive as men and womens perception may be different. Differences in age, wealth and access to land should also be reported.

This principle raises the issue of the immediate need for a stakeholder engagement plan (SEP) to guide the consultation.

The output of the randomised survey would provide preliminary information on the scope and needs of the vulnerable groups.

(iv) Establish a grievance redress mechanism to receive and facilitate resolution of the affected persons’ concerns. The mechanism should be designed as part of the SEP.

(v) Ensure livelihoods maintenance and/or restoration.

Households selected for relocation using agreed criteria would be surveyed about their current livelihood situation

(vi) Provide physically and economically displaced persons with needed assistance. Provision of assistance is based on the current assets and livelihoods. If the relocation is voluntary each package would be negotiated between the parties and subject to third party validation.

(vii) Improve the standards of living of the displaced poor and other vulnerable groups, including women, to at least national minimum standards.

A requirement for involuntary resettlement. For voluntary resettlement this issue becomes part of the negotiated agreement

(viii) Develop procedures in a transparent, consistent, and equitable manner. The implementation of the SEP with information disclosure, consultation & grievance mechanism would be required to address this principle.

(ix) Ensure that displaced persons without titles to land or any recognizable legal rights to land are eligible for resettlement assistance.

(x) When displacement occurs, prepare a resettlement plan outlining displaced persons’ entitlements, livelihood maintenance/restoration strategy (if applicable), institutional arrangements, monitoring and reporting framework, budget, and time-bound implementation schedule.

(xi) Disclose a draft resettlement plan, including documentation of the consultation process in a timely manner, before project appraisal, in an accessible place and a form and language(s) understandable to affected persons and other stakeholders.

This principle requires that for involuntary resettlement landless households should be included in the program. For voluntary resettlement this group maybe overlooked as their negotiating position is weak.

This principle applies if there is involuntary resettlement which has more mandatory requirements than voluntary resettlement and generally has long schedule due to reporting and disclosure requirments.

Also required for involuntary resettlement. A voluntary resettlement with negotiated agreements requires confirmation that the affected household will maintain the same or better income and livelihood status through third party verification.

(xii) Disclose the final resettlement plan and its updates to affected persons and other stakeholders. This principle applies if there is involuntary resettlement which has more mandatory requirements than voluntary resettlement.

(xiii) Pay compensation (if applicable) and provide other resettlement entitlements before physical or economic displacement.

If there is difference between the value of the assets of the displaced household compared to what is being given in a resettlement package compensation is required in an agreed form either monetary or in kind.

(xiv) Implement the resettlement plan under close supervision throughout project implementation. If a LARP were required the implementation of the plan may continue into the civil works phase of the project. Third party verification of individual agreements is generally shorter but may still continue into this phase.

(xv) Monitor and assess resettlement outcomes

Monitoring of involuntary resettlement outcomes is carried out as part of the last phase of the project cycle implementation of the civil works by an independent third party monitor.

Annex 4: Nauru Country Safeguards Framework Review

FOR DISCUSSION ONLY

Comparative Analysis of Nauru’s Legal Framework and Involuntary Resettlement Safeguards in the ADB Safeguard Policy Statement

(A) ADB Safeguard Policy Statement

(B) Corresponding Provisions in National Policy and Legal Instruments1

Involuntary Resettlement Safeguards

(C) Extent of Equivalence2 Review comments

(D) Recommendations

Objectives: To avoid involuntary resettlement wherever possible; to minimize involuntary resettlement by exploring project and design alt ernatives; to enhance, or at least restore, the livelihoods of all displaced persons in real terms relative to pre -project levels; and to improve the standards of living of the displaced poor and other vulnerable groups.

Key element (1): Avoid involuntary resettlement wherever possible

No corresponding legal provision. No equivalence See Scope and Triggers. Consider amending the Lands Act 1976 to provide safeguards for losses and restrictions resulting from compulsory leasing of land for public purposes, as necessary and appropriate.

This recommendation applies to each key element.

Key element (2): Minimize involuntary resettlement by exploring project and design

No corresponding legal provision. No equivalence

1 Nauru’s legislation is online: http://ronlaw.gov.nr/nauru_lpms/index.php All text is direct citation from the official versions of the legal instruments except where otherwise indicated by annotation.

2 “Full Equivalence” denotes that the national legal instruments are in complete harmony with the corresponding ADB Safeguard O bjective, Scope and Trigger, Policy Principle or Key Element thereof. “Partial Equivalence” denotes that the national legal instruments are in partial ha rmony with the corresponding ADB Safeguard Objective, Scope and Trigger, Policy Principle or Key Elem ent; and “No Equivalence” denotes that no legal requirement can be found that corresponds to the particular ADB Safeguard Objective, Scope and Trigger, Policy Principle or Key Element. It is intended that the refere nced text of the national policy documents and legal instruments be sufficiently clear to demonstrate the findings of Full Equivalence or No Equivalence without furt her explanation, except in those instances where an explanation would appear necessary and is given. A finding of Partial Equivale nce normally requires the explanation provided. In some cases, there may be full equivalence for one issue, but only partial equivalence or no equivalence for one or more of the oth er issues governed by a particular legal instrument. In such cases, the degree of equivalence for each issue is indicated.

1 As of November 2016

(A)

ADB Safeguard Policy Statement

alternatives

Key element (3): Enhance, or at least restore, the livelihoods of all displaced persons in real terms relative to pre-project levels

Key element (4): Improve the standards of living of the displaced poor and other vulnerable groups.

(B) Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2

Review comments

No corresponding legal provision. No equivalence

(D) Recommendations

No corresponding legal provision. No equivalence

Scope and Triggers: The involuntary resettlement safeguards cover physical displacement (relocation, loss of residential land, or loss of shelter ) and economic displacement (loss of land, assets, access to assets, income sources, or means of livelihoods) as a result of (i) involuntary acquisition of land, or (ii) involuntary restrictions on land use or on access to legally designated parks and protected areas. It covers them whether such losses and involuntary restrictions are full or partial, permanent or temporary.

Constitution as amended 1968

Part II Protection of Fundamental Rights and Freedoms

8 Protection from deprivation of property

(1) No person shall be deprived compulsorily of his property except in accordance with law for a public purpose and on just terms.

Lands Act 1976 as in force from 15 April 2011

5 Leasing, etc., of land for public purposes

(1) Where the Council, the Corporation or any other statutory corporation requires to obtain for the purpose of the phosphate industry or for any other public purpose a lease of any land for a period not exceeding seventy-seven years, an easement, wayleave, or other right similar or analogous thereto in respect of any land, or a licence to enter upon any land and remove sand therefrom, it shall inform the Minister in writing of its requirement and of the reason for it.

Partial equivalence

The Constitution guarantees “just terms” if land is taken for a public purpose.

The Lands Act 1976 provides that the Minister may override a minority of owners in a group if the majority agrees to lease jointly-owned land for a public purpose, but the law has no provision for compulsory taking.3 It appears that under Nauru law, involuntary losses and restrictions would be for a limited, although relatively long-term, period.

3

http://www.austlii.edu.au/au/journals/MurUEJL/1995/23.html

2 As of November 2016

See MacSporran Peter H 1995. Land Ownership and Control in Nauru. In Murdoch University Electronic Journal of Law Volume 2, Number 2 July

FOR DISCUSSION ONLY

(A)

ADB Safeguard Policy Statement

(B) Corresponding Provisions in National Policy and Legal Instruments1

(2) Where the Minister is informed in writing under the previous subsection of any such requirement as is referred to in that subsection, he may, if he is satisfied that the lease, easement, wayleave, other right or licence is reasonably required by the Council, the Corporation or the other statutory corporation, as the case may be, for the public purpose, notify the owners of the land of the requirement and the public purpose and request them to grant the lease, easement, wayleave, other right or licence, as the case may be, or may cause them to be so notified and requested.

(3) Where the Republic requires to obtain for any public purpose a ease of any land for a period not exceeding seventy-seven years, an easement, wayleave or other right similar or analogous thereto in respect of any land, or a licence to enter upon any land and remove sand therefrom, the Minister may notify the owners of the land of the requirement and the public purpose and request them to grant the lease, easement, wayleave, other right or licence, as the case may be, or may cause them to be so notified and requested.

6 Where minority of owners refuses, etc., to execute lease, etc.

Where the owners of any land have been notified by the Minister under section 5 of any such requirement as is referred to in that section and not less than threefourths of the owners of that land, both by number and by interest in the title thereto, have executed the instrument granting the lease, easement, then, if any of the other owners of that land refuses or fails to execute that instrument or is unable by reason of absence from Nauru or physical or legal disability to do so, the Minister shall inform the Cabinet thereof and if the Cabinet is satisfied:

(a) that the lease, easement, wayleave, other right or licence is required for a public purpose; and

(b) that the refusal or failure of that owner to execute the instrument is unreasonable or, in the case of a person who is absent from Nauru or under a disability, that if he were present in Nauru or not under a disability his refusal or failure to execute the instrument would be unreasonable, it may direct that the instrument is to be exe cuted on behalf of that owner by the public officer nominated under section 15; and the Secretary to the Cabinet shall forthwith send to the public officer nominated under section 15 to execute the instrument or instruments of the class of the instrument a notice in writing under his hand requiring him to execute the instrument on behalf of that owner.

(C) Extent of Equivalence2 Review comments

The Lands Act 1976 provides one safeguard – see Policy Principle 3, Key element 3.

(D) Recommendations

(A)

ADB Safeguard Policy Statement

Key element (1): Screen the project early on

Key element (2): Identify past, present, and future involuntary resettlement impacts and risks

Key element (3): Determine the scope of resettlement planning through a survey and/or census of displaced persons including a gender analysis, specifically related to resettlement impacts and risks

(B)

Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

No corresponding legal provision. No equivalence

No corresponding legal provision. No equivalence

(D) Recommendations

No corresponding legal provision. No equivalence

Policy Principle 2: Carry out meaningful consultations with affected persons, host communities, and concerned nongovernment organizations. Inform all displaced persons of their entitlements and resettlement options. Ensure their participation in planning, implementation, and monitoring and evaluation of resettlement programmes. Pay particular attention to the needs of vulnerable groups, especially those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land, a nd ensure their participation in consultations. Establish a grievance redress mechanism to receive and facilitate resolution of the affected persons’ concerns. Support the social and cultural institutions of displace d persons and their host population. Where involuntary resettlement impacts and risks are highly complex and sensitive, compensation and resettlement decisions should b e preceded by a social preparation phase.

Policy Principle 1: Screen the project early on to identify past, present, and future involuntary resettlement impacts and risks. Determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks.

Key element (1): Carry out meaningful consultations with affected persons, host communities, and concerned

No corresponding legal provision. No equivalence

4 As of November 2016

FOR DISCUSSION ONLY

(A)

ADB Safeguard Policy Statement

Key element (2): Inform all displaced persons of their entitlements and resettlement options

(B)

Corresponding Provisions in National Policy and Legal Instruments1

No corresponding legal provision.

(C) Extent of Equivalence2 Review comments

(D) Recommendations nongovernment organizations

No

Key element (4): Ensure the participation in consultations of vulnerable groups, especially those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land

Constitution as amended 1968

Part The Republic of Nauru and the Supreme Law of Nauru

2 Supreme Law of Nauru

(1) This Constitution is the supreme law of Nauru.

No

Partial equivalence

The Constitution guarantees access to the Supreme Court to enforce the

SECTION 2.0 ANNEX 4

6

ADB Safeguard Policy Statement

(B)

Corresponding Provisions in National Policy and Legal Instruments1

(2) A law inconsistent with this Constitution is, to the extent of the inconsistency, void.

Part II Protection of Fundamental Rights and Freedoms

14 Enforcement of fundamental rights and freedoms

(1) A right or freedom conferred by this Part is enforceable by the Supreme Court at the suit of a person having an interest in the enforcement of that right or freedom.

(C) Extent of Equivalence2 Review comments

(D) Recommendations receive and facilitate resolution of the affected persons’ concerns

fundamental right guaranteed in Article 8, which stipulates that a taking of property for a public purpose must be in accordance with law and on just terms.

Key element (6): Support the social and cultural institutions of displaced persons and their host population

Key element (7): Where involuntary resettlement impacts and risks are highly complex and sensitive, compensation and resettlement decisions should be preceded by a social preparation phase

No corresponding legal provision. No equivalence

No corresponding legal provision. No equivalence

Policy Principle 3: Improve, or at least restore, the livelihoods of all displaced persons through (i) land -based resettlement strategies when affected livelihoods are land based where possible or cash compensation at replacement value for land when the loss of land does not undermine li velihoods, (ii) prompt replacement of assets with access to assets of equal or higher value, (iii) prompt compensation at full replacement cost for assets that can not be restored, and (iv) additional revenues and services through benefit sharing schemes wh ere possible.

Key element (1): Improve, or at least restore, the livelihoods of all displaced

Constitution as amended 1968

Part II Protection of Fundamental Rights and Freedoms

8 Protection from deprivation of property

(1) No person shall be deprived compulsorily of his property except in accordance with law for a public purpose and on just terms.

Partial equivalence

As of November 2016 FOR DISCUSSION ONLY

FOR DISCUSSION ONLY

(A)

ADB Safeguard Policy Statement

(B) Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

the legal regime does not define what such terms should be. See Policy Principle 3, Key element 3.

(D) Recommendations persons through land-based resettlement strategies when affected livelihoods are land based, where possible, or cash compensation at replacement value for land when the loss of land does not undermine livelihoods

Key element (2): Improve, or at least restore, the livelihoods of all displaced persons through prompt replacement of assets with access to assets of equal or higher value

Key element (3):

Improve, or at least restore, the livelihoods of all displaced persons through prompt compensation at full replacement cost for assets that cannot be restored

No corresponding legal provision. No equivalence

(A) ADB Safeguard Policy Statement

(B) Corresponding Provisions in National Policy and Legal Instruments1

Fourth Schedule – Compensation for Removal of Trees (Section 12) The amount to be paid as a compensation for a tree removed shall be such amount…as a member of the Nauru Lands Committee…decides is fair and reasonable… [lists types of trees and amounts to be paid in compensation for each]

(C) Extent of Equivalence2 Review comments

(D) Recommendations

Lands Act 1976 as in force from 15 April 2011

12 Removal of trees and vegetation

(1) ...In the case of an easement, wayleave or other right similar or analogous thereto or of a licence to enter and remove sand, only such number of trees shall be removed as is reasonably required to be removed for the purpose for which the easement, wayleave, other right or licence was granted.

(2) Where trees are removed from any land in pursuance of the preceding subsection, the lessee or the grantee of the easement, wayleave, other right or licence, as the case may be, shall forthwith pay compensation therefor to the lessor or grantor, as the case may be, in accordance with the provisions of the Fourth Schedule to this Act.

Partial equivalence

The Lands Act 1976 provides for compensation for any trees removed from land over which an easement, right-of-way, or other similar right the government may acquire.

Key element (4): Improve, or at least restore, the livelihoods of all displaced persons through additional revenues and services through benefit sharing schemes where possible

No corresponding legal provision. No equivalence

Policy Principle 4: Provide physically and economically displaced persons with needed assistance, including the following: (i) if there is relocation, secured tenure to relocation land, better housing at resettlement sites with comparable access to employment and production opportunities, ntegration of resettled persons economically and socially into their host communities, and extension of project benefits to host communities; (ii) transition al support and development assistance, such as land development, credit facilities, training, or employment opportunities; and (iii) civic infrastructure and community services, as required.

Key element (1): Provide physically and economically displaced persons, if there is relocation, with secured tenure to relocation land, better housing at resettlement sites with comparable access to employment and production opportunities

No corresponding legal provision. No equivalence

8 As of November 2016

FOR DISCUSSION ONLY

(A)

ADB Safeguard Policy Statement

(B) Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

(D) Recommendations integration of resettled persons economically and socially into their host communities, and extension of project benefits to host communities

Key element (2): Provide physically and economically displaced persons with transitional support and development assistance such as land development, credit facilities, training, or employment opportunities

Key element (3): Provide physically and economically displaced persons with civic infrastructure and community services

No corresponding legal provision. No equivalence

(A)

ADB Safeguard Policy Statement

Improve the standards of living of the displaced poor and other vulnerable groups, including women, to at least national minimum standards

Key element (2): In rural areas provide them with legal and affordable access to land and resources

(B)

Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

(D) Recommendations

No corresponding legal provision. No equivalence

Policy Principle 5: Improve the standards of living of the displaced poor and other vulnerable groups, including women, to at least national minimum standards. In rural areas provide them with legal and affordable access to land and resources, and in urban areas provide them with appropr iate income sources and legal and affordable access to adequate housing.

Key element (1): No corresponding legal provision. No equivalence

No corresponding legal provision. No equivalence

Key element (3): in urban areas provide them with appropriate income sources and legal and affordable access to adequate housing

No corresponding legal provision. No equivalence

Policy Principle 6: Develop procedures in a transparent, consistent, and equitable manner if land acquisition is through negotiated settlement to ensure that those people who enter into negotiated settlements will maintain the same or better income and livelihood status.

Key element (1): Develop procedures in a transparent, consistent, and equitable manner if land acquisition is through negotiated settlement

No corresponding legal provision. No equivalence

As of November 2016

FOR DISCUSSION ONLY

(A)

ADB Safeguard Policy Statement

Key element (2): Ensure that those people who enter into negotiated settlements will maintain the same or better income and livelihood status

(B) Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

No corresponding legal provision. No equivalence

(D) Recommendations

Policy Principle 7: Ensure that displaced persons without titles to land or any recognizable legal rights to land are eligible for resettlement a ssistance and compensation for loss of nonland assets.

No corresponding legal provision. No equivalence

Policy Principle 8: Prepare a resettlement plan elaborating on displaced persons’ entitlements, the income and livelihood restoration strategy, nstitutional arrangements, monitoring and reporting framework, budget, and time -bound implementation schedule. No corresponding legal provision.

Policy Principle 9: Disclose a draft resettlement plan, including documentation of the consultation process in a timely manner, before project ap praisal, in an accessible place and a form and language(s) understandable to affected persons and other stakeholders. Disclose the final resettlement plan and its updates to affected persons and other stakeholders.

Key element (1): Disclose a draft resettlement plan, before project appraisal, in an accessible place and a form and language(s) understandable to affected persons and other stakeholders

Key element (2): Disclose the final resettlement plan and its updates to affected persons and other stakeholders.

No corresponding legal provision. No equivalence

(A)

ADB Safeguard Policy Statement

(B)

Corresponding Provisions in National Policy and Legal Instruments1

component of the project as a stand-alone operation.

Key element (1): Conceive and execute involuntary resettlement as part of a development project or programme

(C) Extent of Equivalence2 Review comments

No corresponding legal provision.

(D) Recommendations

No corresponding legal provision.

No corresponding legal provision. No

Policy Principle 10: Conceive and execute involuntary resettlement as part of a development project or programme. Include the full costs of resett lement in the presentation of project’s costs and benefits. For a project with significant involuntary resettlement impacts, consider implementing the involuntary resettlement

Key element (3): For a project with significant involuntary resettlement impacts, consider implementing the involuntary resettlement component of the project as a stand-alone operation No equivalence

provision.

Policy Principle 11: Pay compensation and provide other resettlement entitlements before physical or economic displacement. Implement the resettlement plan under close supervision throughout project implementation.

Key element (1): Pay compensation and provide other resettlement entitlements before physical or economic SECTION 2.0 ANNEX 4

FOR DISCUSSION ONLY

(A) ADB Safeguard Policy Statement

Key element (2): Implement the resettlement plan under close supervision throughout project implementation

(B) Corresponding Provisions in National Policy and Legal Instruments1

(C) Extent of Equivalence2 Review comments

(D) Recommendations displacement

No corresponding legal provision. No equivalence

Policy Principle 12: Monitor and assess resettlement outcomes, their impacts on the standards of living of displaced persons, and whether the obje ctives of the resettlement plan have been achieved by taking into account the baseline conditions and the results of resettlement monitoring. Disclose monitoring reports.

Key element (1): Monitor and assess resettlement outcomes, their impacts on the standards of living of displaced persons, and whether the objectives of the resettlement plan have been achieved by taking into account the baseline conditions and the results of resettlement monitoring

No corresponding legal provision. No equivalence

No corresponding legal provision. No equivalence

Annex 5: Risks

Table 5 – Current Safeguards Risks

Safeguard Risk Description

The importance environmental and social safeguarding is underestimated by the project team and/or project Steering Committee.

Informed, transparent and meaningful consultation of the project affected people does not occur in formulating future options for housing and other infrastructure development

Project deliverables ultimately lead to social harm (e.g. through inadequate/poor scoping or narrowsightedness)

Causes/Triggers

Past proposals for refugee facility and port development make political sense to lending partnersfeasible for non rational reasons whereas development of Portion requires a broader technical social and environmental rationale.

Steering Committee perceives that a more government led top down approach to first formulating options is the most realistic approach with this cultural context.

(1) Limited ability of team to travel leading to (2) limited opportunities for wider stakeholder collaboration (3) custom, political and other stakeholder group sensitivities that the project team may not be able to adequately understand (4) insufficient work and visioning by project team and wider team around impact of project on social groups and methods by which vulnerabilities might be addressed by the project and follow-up projects.

Nauruans do not want to live in/move in to ultimate designs. Beneficiaries move back to coastal settlements/existing housing.

(1) Inadequate localisation, socialisation and collaboration prior to finalising deliverables (2) Houses/ environment for section 230 not designed with (current+future) local needs in mind (3) inadequate policy development and research around who will move, by what mechanism and social impacts including mobility and livelihoods (4) inadequate scoping and framing of issues, such that housing and section 230 urban design does not adequately overcome primary development issues.

New properties are not allocated according to a transparent and equitable process.

(1) Inadequate research and policy development around mechanisms for allocating housing/land (2) Inadequate consultation, collaboration and socialisation of initiative and allocation mechanism (3) inadequate land policy and housing market policy development prior to project deliverable finalisation (4) inadequate linkages between housing design, social safeguards and land/land use policy development

Customary land issues and/or disagreements around land management delay deliverables and/or lead to non-acceptance of deliverables

(1) Land disputes have delayed and/or prevented infrastructure development in the past, and may impact this project - either post-project in terms of blocking acccess or in failing to come to an agreement around land management recommendations without sufficient consultation and socialisation (2) Project team needs to adquately understand customary issues and approaches, and the implications of these on an eventual housing market, on housing design, etc.

Insufficient transfer of planning knowledge to enable post-project sustainability

Project deliverables lead only to reports, do not lead to an implemented project (ie: built homes that become lived in and contribute to addressing housing shortage)

(1) Institutional capacity for managing safeguards is a known issue, and with inadequate land use planning and urban planning policies in place, there is a need to not only inform these policies but to do enough to ensure sufficient local knowledge to manage future processes.

(1) Project deliverables are not in a comprehensible form to Nauruan counterparts (HGI SC) and/or are not sufficient/acceptable to future implementing contractors and/or donors (2) Insufficient consultation/ collaboration leads to rejection of project deliverables and findings (3) Insufficient localisation and understanding of local context leads to deliverables that are neither fit-for-purpose nor acceptable to local communities (4) insufficient understanding of political and/or power dynamics leads to project rejection.

(5) Insufficient integration of customary needs and knowledge

Project design does not meet local needs: insufficient integration of customary needs and knowledge

(1) Limited travel by project team limits ability to understand and contextualise customary issues/interests

(2) Insufficient engagement and wider stakeholder engagement leads to insufficient knowledge of and inclusion of the needs and wants of different customary groups (3) Political dynamics combined with limitations on travel/engagement lead to the exclusion of some customary groups/interests/subgroups/ sub-interests.

Project is unscaleable and unsustainable.

(1) Lack of policy guidance under HGI SC including around land tenure, data administration, housing design and needs, land use planning etc (2) Insufficient attention to environmental conditions and risks (3) insufficient attention to future vs. current/past needs (4) Master planning process does not adequately take into account food, energy and water demands of Nauru into the future.

Implementation Phase leads to unanticipated environmental & social impacts

A significant foreign workforce may be required leading to social risks including labour & sex trafficking & child labour

SECTION 3.0

SUPPORTING ACCESSIBLE AND EQUITABLE HOUSING IN NAURU THROUGH LAND TENURE REFORM AND LAND USE PLANNING

SECTION 3.0

SECTION 3.0

Land Tenure + Social Safeguarding Supporting Accessible and Equitable Housing in Nauru through Land Tenure Reform and Land Use Planning

TABLE OF CONTENTS

Introduction

1 Current Context and Practice

1.1 The international right to adequate housing and pro-poor housing

1.2 The housing challenge in Nauru: low-quality housing structures, overcrowded living conditions and low maintenance

1.3 The cause of the housing challenge in Nauru and links with the land tenure system and planning framework

2 Case studies

Case Study 1: Fiji’s efforts towards Low Income Housing Accessibility

Case Study 2: Dealing with Absenteeism, Fragmentation and Land Shortages in the Cook Islands

Case Study 3: Addressing Fragmentation and Restrictions on Customary Land in New Zealand through Land Trusts

Case Study 4: GLTN’s Participatory and Inclusive Land Readjustment to support improved access to services and land for housing

Case Study 5: (Pro-poor) Building Control Systems

3 Concluding Observations and Implications for the HGI

Annex A - Overview of SDG 11: Inclusive, safe, resilient, and sustainable cities

Disclaimer:

There is limited, up to date data available on the land tenure and housing situation in Nauru: this document draws upon census data that is over a decade old. As of 28 July 2022, no review or specific consultation with Nauruans has been undertaken. Hence statements and conclusions contained in this report should not be accepted as fact without further review by or consultation with Nauruan stakeholders. Any further data on the accuracy of this conclusion from the HGI is welcomed.

METROCOLOGY

SECTION 3.0 TABLE OF CONTENTS

Introduction

Despite the institution of several well-intentioned housing schemes,1 Nauruans continue to experience housing shortages, low-quality housing structures and overcrowded living conditions. 2 This is concerning not only because it undermines the right of Nauruan citizens to adequate housing, but also because of the solid link established between sustainable and affordable housing and the achievement of the UN 2030 Sustainable Development Goals (SDGs). With housing underpinning thirteen of the seventeen SDGs, the 2030 Agenda clearly recognizes that access to affordable, accessible and habitable housing is vital for outcomes in education, standards of living, health, development of a sense of identity for communities, human dignity, empowerment, and the building a socially cohesive society.3

The extent to which the right to adequate housing is realized also has a significant impact on climate vulnerability. Those lacking access to resilient or secure housing are more adversely affected by the impacts of climate change because they often live in areas that are vulnerable to floods, hurricanes and cyclones, storm surges, mudslides, earthquakes and tsunamis.4 The economic consequences of climate-induced extreme weather are further exacerbated for individuals living in poor quality housing – with housing based on low quality construction and materials rarely built to withstand extreme climate conditions. Conversely, well-designed urban areas, with large population concentrations, such as that proposed under the Higher Ground Initiative (HGI), can present opportunities for the efficient provision of adequate services such as

1 The supplementary estimates of Government expenditure in 2020-2021 indicate that $2.5 million was provided for the Nauru Community Housing Scheme to address issues related to overcrowding and sanitation. Prior to this, in 2017, the 2017-18 budget delivered form states that $5.5 million was allocated to the Nauru Community Housing Scheme. While the schemes and budget are welcome are positive indications on policy delivery, reporting on the success of these schemes is sparse. There is an assumption that this scheme reached very few families on the basis that only around 20 households were approved for the 2017-2018 scheme.

2 See Asian Development Bank (ABD), Grant Agreement (Special Operations) for Grant 6034-Nauru: Preparing the Nauru Sustainable Urban Development Project, 2021. The phenomena of overcrowding and inadequate housing were recently confirmed in the consultancy scoping workshop with Nauru’s Steering Committee for the HGI held on 11 November 20212022.

3 As noted by Habitat for Humanity Australia “Housing is one of the critical drivers for thirteen out of the seventeen sustainable development goals outlined by the United Nations. It is a platform for both household resilience and sustainability, propelling the Human Development and Multi-Poverty Index outcomes in health, education, and standard of living. These outcomes are closely tied to development indicators relating to nutrition, child mortality, school enrolment, and sanitary infrastructure.” See Habitat for Humanity Australia ‘Why is Housing the Key to Solving the Sustainable Development Goals?’ October 13, 2021.

4 Office of the High Commission of Human Rights, Special Rapporteur on the Right to Adequate Housing, Climate change and the right to housing’, last accessed July 2022.

water and electricity and the promotion of climate resilient infrastructure. As noted by UN-Habitat in its 2015 report, the development of climate-conscious urban settlements has the net positive effect of placing the most vulnerable urban dwellers (people living along the coast and hazard prone areas) at the centre of shifts towards sustainable urban management.5

The drivers of Nauru’s housing poverty are multiple, including, amongst others; rapid population increase, poor infrastructure, land related disputes, inadequacies in the legal and policy framework, enforcement and regulatory mechanisms and poorly coordinated institutional arrangements.6 In addition to these drivers, Nauru’s current system of land tenure also plays an important role in limiting supply and access to affordable housing. This is because land acquisition in Nauru, as is outlined in detail in the previous LEI report Initial Assessment of Land Tenure and Land Administration in Nauru (November 2021) is highly restrictive, with limits on both government and corporate access and ownership of land.7 With land predominately owned and utilized through customary networks, those without family connections are liable to be excluded from the land options. The large number of fragmented plots owned by multiple members of a family network, compounded with complex administrative processes for land transfers (including burdensome consent requirements and the need for Presidential approval) also reduces the feasibility of Nauruans acquiring new or larger plots – while the twin phenomenon of diminishing plots as a result of fragmentation, alongside the presence of multiple owners on one plot, complicates investment decision-making and undermines the incentives for any necessary investments. Land scarcity takes place against the backdrop of an almost absent system of land controls and regulations around construction, thereby contributing to the prevalence of low-quality housing construction and poor utilization of Nauru’s

5 UN-Habitat, Urbanisation and Climate Change in Small Island Developing States, May 2015, p. 26.

6 Ahmed Moustafa, UNDP Nauru Hardship and Poverty Report: Analysis of the 2012/2013 Household Income and Expenditure Survey, 2013.

7 See LEI, Initial Assessment of Land Tenure and Land Administration in Nauru (November 2021), p. 15 “Restrictions in the coverage of leasehold tenures in the Lands Act 1956 constrains government access to land for infrastructure and rehabilitation (through both access and cost) and arguably significantly contributes to housing (and property) affordability challenges for individuals unable to access land through family networks. The process of all leases going through government creates an administrative burden – and it does not appear that government is remunerated for any of the land-related services it provides.”

limited space. 8

This paper Supporting Pro-Poor Housing in Nauru through Land Tenure Reform and Land Use Planning draws on regional and global experience supporting pro-poor housing through reforms to land tenure and land use planning. The goal is to provide some insights into the tenure and planning options that HGI in Nauru could adopt to support an improved housing situation in Land Portion 230 and more broadly across the country.

The paper is structured as follows. Section one begins by briefly exploring the current context and practice in Nauru, outlining the content of the international right to adequate housing, the current housing challenges in Nauru for the country’s poor, and the links between these and the land tenure system and the importance of housing to Nauru’s sustainable development. Section two then provides a series of case studies from Fiji, New Zealand, the Cook Islands and globally (Global Land Tool Network), with each case study drawing out lessons that are applicable to the Nauruan context. Section three concludes with some implications and three recommended actions for the HGI to take in the short term to continue to effectively integrate pro-poor actions in the design of the HGI.

Before proceeding any further, it should be noted that there are no quick fixes to the housing issues currently facing many Nauruans, and that land tenure and poor land planning are just two contributing factors to the current housing situation. Nonetheless, with the land reforms required to implement the HGI vision, an opportunity presents itself to make inroads on the issue of housing poverty in Nauru. In this vein, the authors set forth in this paper some preliminary reflections and mechanisms from a land reform perspective to facilitate pro-poor sustainable housing, not just housing on higher grounds. Housing within the framework of the HGI must respond to the needs of the poor and not just those with means to pay or with existing entitlements.

8 See LEI, Initial Assessment of Land Tenure and Land Administration in Nauru (November 2021), p. 19 “Ultimately, it is a recognized challenge that Nauru does not have a sufficient legal basis, or sufficient institutional and/or private capacity to support planning and development controls. The NIEP (2019) highlights the need for: a national land use policy, development controls and consent processes, a national building code and standard, a legislative basis for environmental and cultural heritage protections, clear zoning, support for service provision (including sanitation and drainage) and enforcement processes for many of these. …Landowners – and those who seek permission to build from landowners – have limited restrictions as to where they can build, and many land portions have multiple uses on the one portion (residential, commercial, sanitation, etc.). There is no clear plan yet enacted and in place to deliver on the necessary homes required for the next decade, 20 years or 50 years.”

1.0 Current Context and Practice

1.1 The international right to adequate housing and pro-poor housing

The right to adequate housing is universal and reflected in Article 25 of the 1948 Universal Declaration of Human Rights (UDHR).9 This means that member States are committed to realizing the right to adequate housing progressively for its people and that access to affordable housing is considered by members states as a major safeguard of security and peace.

The International Covenant on Economic Social and Cultural Rights 1966 (CESCR) is the most comprehensive treaty at the international level that recognizes the importance of access to shelter and improving the living standards of poor and low-income households, providing the right to adequate housing in Article 11, “State parties should recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions ’’.

While Nauru is not a State Party to the CESCR,10 this provision and its interpretation by the United Nations CESCR Committee is useful in understanding the type of obligations that the right to adequate housing includes. Current interpretations state that the right encompasses legal security of tenure, affordability, habitability, availability of services, materials, facilities, infrastructure, accessibility, location, and cultural adequacy.11 The obligation to respect, protect, fulfil and monitor the right to adequate housing, as summarized by the Office of the UN High Commissioner for Human Rights and UN Habitat, is explained in the Box 1 below.

Box 1: The right to adequate housing in international law12

9 Article 25 of the UNDHR states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” (emphasis added).

10 As per the UN Treaty Depository, CESCR Ratification List, last accessed July 2022. Amnesty International notes that Nauru’s reluctance in ratifying treaties is linked to financial constraints in implementing their realization.

11 See the Special Rapporteur on the Right to Adequate Housing, OHCHR, The Human Rights to Adequate Housing, 2013, last accessed 2022.

12 UN Office of the High Commissioner of Human Rights (OHCHR) and UN Habitat, Fact Sheet 21: The Right to Adequate Housing Undated.

Obligation to respect: This obligation encourages that there should be no interference with the enjoyment of the right to adequate housing such as imposing discriminatory practices in accessing housing, forced evictions, denying security of tenure to groups, infringements of the right to privacy, protection of the home and water resources pollution.

Obligation to protect: This obligation requires that interventions that hinder third parties such as property developers from should not interfere with the right to adequate housing. This can be done through the enactment of laws, policies, or other measures to ensure that private actors do not act arbitrarily and infringe on human rights. Regulation that promotes and protect the right to adequate housing should be established. This can be done by encouraging that housing finance free from discrimination are guaranteed by banks, provision of water and sanitation and other basic services by the private) sector in ways that promote quality, availability, accessibility, acceptability.

Obligation to fulfil: This obligation requires that appropriate legislation, administrative, judicial, budgetary and any other measures that promote full realization of the right to adequate housing are considered. By adopting national housing policies and plans that set development objectives of the housing sector with specific focus on vulnerable groups. To fulfill this obligation, States are required to identify resources, outlines responsibilities, develop implementation measures, monitor outcomes, and provide adequate remedies for violations.

Monitoring the Right to Adequate Housing: Monitoring and accountability of the right to adequate housing ought to be transparent, effective, accessible and should take place at a national, regional, and international level. National level adequate housing administrative, judicial monitoring and accountability mechanisms should be considered at a national level. These can be reflected in housing policies, strategies, and budget allocations. Adopting a human rights-based approach is equally helpful in effective monitoring of housing outcomes and efforts that aim to achieve them.

SECTION 3.0 CURRENT CONTEXT AND PRACTICE

Pro-poor housing is an umbrella term that describes housing policy aiming to increase the quality and quantity of housing available, often targeting the urban poor. It responds to the challenge faced all over the rapidly urbanizing (developing) world of improving the quality of housing in existing slum and squatter or low-quality settlements, and of providing land and housing to those without shelter or with inadequate shelter. Pro-poor housing is a means to progressively realize the right to adequate housing.

1.2 The housing challenge in Nauru: low-quality housing structures, overcrowded living conditions and low maintenance

Nauru, as with other countries in the Pacific region, is facing significant challenges in realizing the right to adequate housing and fulling pro-poor housing objectives. While not exhibiting common Pacific housing issues of large urban slums and informal settlements,13 housing shortcomings in Nauru, generally arise through resort to lowquality construction materials that easily provide shelter but that are inadequate for the health and safety of inhabitants. For example, Nauru’s 2019 mini-census identifies that most roofs in Nauru consist of tin/aluminum, fiber cement and asbestos - all lowquality materials, which can pose health dangers to inhabitants.14 In the 2012/2013 full census it was noted that asbestos and fiber roofs and walls are more likely among households with the lowest expenditure quintiles because of their low costs.15

The maintenance of such houses is also a problem. For example, according to the 2019 mini-census, while the majority of dwelling roofs are fully working (55.8%), 30.5% need to be repaired while up to 13.7% need to be replaced. 16

An additional issue in Nauru is the problem of housing density and overcrowding –

linked to the high cost of housing, the shortage of available land and the absence of an effective rental market (see section two). Given familial obligations, homelessness is not present on the island to the author’s knowledge, however the housing of multiple family members and extended family members under one roof creates issues in terms of space for education, privacy, protection from domestic violence and the prevention of social conflicts. According to the 2019 mini-census, the overall average household size is 6.7 persons in 2019, an increase from an average of six in 2002 and 2011.17

In addition to a gap between demand and supply of affordable housing in Nauru, Nauruans face difficulties accessing key utilities. In many areas, access to basic services is lacking, most notably access to water and household and solid waste disposal facilities. This is reflected in the fact that waste management was raised as a priority issue during community consultants for the SDGs voluntary review in 2019.18

The housing issues cited above are particularly noticeable among those areas which were identified as low-income in the 2012/13 census. In 2012/13 about 24% of the Nauruan population (16.8% of households) lived below the basic needs poverty line.19 Denigomodu was recognized in the 2012/2013 census as a poorer district of Nauruhaving the highest rates of “needs replacing” for housing in the 2019 mini-census (with respectively 27.3% and 25.7%) as well as high levels of overcrowding. According to the mini-census the most overcrowded households (16 people and more) are in the areas of Anibare, Anetan and Ewa. 20

Finally, although the authors could uncover no data on this issue, it is understood that individuals without (strong) family ties struggle to access housing on the island, due to the overwhelming propensity to rely on family for accommodation. Any further data on the accuracy of this conclusion from the HGI is welcomed.

16

13 See UN Habitat for Humanity Asia Pacific, Poverty Housing in the Developing Nations of the Pacific Islands, Bangkok, 2009.

14 Most dwellings in Nauru have roofs made of tin/aluminium (93.4% in total) while respectively 3.6% and 3% of roofs are made of asbestos and other materials. Government of Nauru – Bureau of Statistics and Pacific Community, Population in Nauru, Mini-Census 2019, February 2020.

15 Ahmed Moustafa, Nauru Hardship and Poverty Report: Analysis of the 2012/2013 Household Income and Expenditure Survey, Government of Nauru and UNDP Pacific, 2013, 17.

Government of Nauru – Bureau of Statistics and Pacific Community, Population in Nauru, Mini-Census 2019 February 2020.

17 Government of Nauru – Bureau of Statistics and Pacific Community, Population in Nauru, Mini-Census 2019, February 2020.

18 Government of Nauru, Voluntary National Review of the SDGs, 2019.

19 Ahmed Moustafa, Nauru Hardship and Poverty Report: Analysis of the 2012/2013 Household Income and Expenditure Survey, Government of Nauru and UNDP Pacific, 2013.

20 Government of Nauru-Statistics Development Division, Pacific Community, ‘Population in Nauru’ 2020, p.4.

1.3 The cause of the housing challenge in Nauru and links with the land tenure system and planning framework

The housing challenges in Nauru stem from numerous sources, including inadequacies in the legal and policy framework, poor enforcement and regulatory mechanisms, inadequate institutional arrangements, and low levels of stakeholder involvement in land decision-making. Population growth, poor infrastructure, land related disputes, inadequate resource management and vulnerability to natural disasters can also be said to have contributed towards housing inadequacies on the island, especially among poor groups.

As cited in the introduction to this report, another critical driver of the housing crisis in Nauru is the land tenure system which has limited ability to address access to land and land scarcity issues. Planning large scale low-cost housing and spatial plans relies on a predictable system of land access and transactability which currently does not exist in Nauru. Specifically, the traditional land entitlement and inheritance systems in Nauru (whereby there is equality of inheritance for all descendants – see LEI 2021 report Initial Assessment of Land Tenure and Land Administration in Nauru), and the limited ability of the government to acquire land or ensure its consolidation (due to all land belonging to Nauruans citizens), have established a pattern of severe land fragmentation and minimized opportunities for large scale land use planning, environmental management, and scalable (pro-poor) housing schemes.

The current system of land transactions is both opaque and unpredictable. Generally, the government is reactive (i.e., responding to citizen applications) rather than proactive in its dealings with land, in part due to the absence of a clear legal right for the government to acquire land. This status quo has undermined possibilities for the country to identify unused or underdeveloped land and housing development opportunities. The absence of an effective GIS system and accurate, reliable land data, alongside low staff capacity also contributes to this phenomenon.

Further while the land tenure system does not exclude the possibility of r esidential leases / rentals for low-income earners, it also does nothing to encourage or incentivize owners to lease out residential land. The absence of an affordable

rental market minimizes opportunities those Nauruans who wish to do so, 21 to exit overcrowded living conditions and move into their own (affordable) housing - especially if they cannot afford materials for construction or are otherwise unable to access land through the housing petition process. Related, given that only Nauruan persons can own land (as per the Constitution), the capacity to acquire a mortgage will remain impossible - as neither Nauruan nor non-Nauruan banks can offer mortgages in an environment where they cannot legally own rights to the land to be mortgaged.

Indeed, a link can be made between poverty housing and the systems for land development. Typical housing petitions for the development of land involve the acquisition of full consent from 75% of owners for the development (a considerable number in the context of fragmentation) and Department of Land approval. This creates difficulties not only because the processes are administratively burdensome and time consuming, but also because the focus in a petition is on the needs of the individual applicant rather than wider interrelated planning and poverty reduction considerations. In short, decision-making is driven by consideration of the individual needs of the petitioner and the acquisition of the requisite consents rather than considering wider public goods such as poverty reduction and the adequacy of the proposed construction plans.

“Ultimately, it is a recognized challenge that Nauru does not have a sufficient legal basis, or sufficient institutional and/or private capacity to support planning and development controls. The National Integrated Environment Policy (2019) highlights the need for: a national land use policy, development controls and consent processes, a national building code and standard, a legislative basis for environmental and cultural heritage protections, clear zoning, support for service provision (including sanitation and drainage) and enforcement processes for many of these.  …Landowners – and those who seek permission to build from landowners – have limited restrictions as to where they can build, and many land portions have multiple uses on the one portion (residential, commercial, sanitation, etc.). There is no clear plan yet enacted and in place to deliver on the necessary homes required for the next decade, 20 years or 50 years.”22

SECTION 3.0 CURRENT CONTEXT AND PRACTICE

21 The cultural tendency for families including members of the extended family to live together should be acknowledged.

22 See LEI, Initial Assessment of Land Tenure and Land Administration in Nauru (November 2021), p. 19

Identifying all the owners of land to satisfy the 75% approval requirement 23 and achieving the required presidential consent for a land transaction (as the authors understand the process) also means that land once acquired rarely changes hands except via succession – resulting in a scarcity of new sites for housing and an inability of Nauruans to live or lease out houses on new plots or even expanding their (multiple-person owned) land holdings. It is understood that the challenges of consent are further augmented because of the existence of absent landowners based in foreign countries (there are limited statistics available on absenteeism but strong anecdotal evidence). *NB: It is presently unclear to the authors whether, at the end of the housing petition process, a successful applicant becomes the legal owner of the land they are building on by virtue of the consent given by the existing owners for the construction or whether they are mere users of the land (i.e., enjoy a usufructuary right).

Equity considerations also come into play because in the case of multiple housing petitions for the one site, those who can move fastest on acquiring consent and getting construction contracts in place will get approval first. Poorer households who apply but have limited networks and access to funds are thereby excluded. It can be assumed this has created a housing system that is exclusionary whereby high-income, connected individuals are prioritized in land development applications

In addition, it is possible to hypothesize that the fragmented interests in land amongst same members of the family may contribute to poor levels of building maintenance witness across Nauru – albeit alongside other factors such as the high cost of imported (quality) construction materials and the lack of zoning controls. As noted above, it is not entirely clear to the authors whether the family who builds on land become ‘owners’ of that land once a petition is successful, or whether the land continues to be owned equally among beneficiaries. If the later, multiple ownership may create a tragedy of the commons in that the house is overexploited individually, but collective maintenance and development of the land and house is under-invested. Further data is needed to clarify if this is indeed a correct hypothesis.

23 Unclear if this provision refers to the raw number of owners or the percentage of ownership of the parcel among owners.

Related, and as noted above, the absence of an overall system for planned land use and regulations, which the HGI seeks to address through the Master Plan, contributes to the prevalence of low-quality housing construction. 24 The lack of zoning and planning controls means that individuals are not incentivized or obligated to reduce their building footprint i.e., by building a second story instead of building outwards. Although apartment blocks and higher density blocks (vertical expansion) can accommodate smaller size dwellings (singles) which may be more accessible for some socio-economic groups and support vulnerable groups facing violence, families tend to extend horizontally if they wish to extend their houses, in effect contributing to land shortages.

Absent planning contributes not only to a shortage in affordable housing, but also other challenges. As observed by the UN Department of Economic and Social Affairs in their report “unplanned, rapid and poorly managed urban development leads to many challenges that impact on all aspects of sustainable development, including a shortfall of affordable housing, insufficient infrastructure, limited open spaces, unsafe levels of air pollution and increased climate and disaster risk.”25 As it concerns disaster risk management and climate resilience it is worth noting that the poor implementation of building standards and land use planning regulations (including the absence of any standards, as is the case in Nauru) has been identified as key factors in worsening disaster impacts. Owing to high population density, especially in informal settlements in urban areas, and the inequalities rising within those, the scale of vulnerability to natural disasters is said to increase exponentially. 26

In this regard it is notable that SDG 11 on inclusive cities makes the case that wellplanned cities can generate inclusive prosperity and drive economic growth. Thus, if Nauru effectively tackles head on its housing and tenure reform challenges with a focus on addressing the position of the vulnerable and poor, the positive secondary benefits will be significant – including improved disaster risk resilience

24 See LEI, Initial Assessment of Land Tenure and Land Administration in Nauru (November 2021), p. 19

25 UN DESA, Statistics Division “Make Cities and Human Settlements Inclusive, Safe, Resilient and Sustainable”, last accessed July 2022.

26 See Unger et al, ‘On the need for pro-poor land administration in disaster risk management’ Survey Review, vol 49 (2017) p, 439.

and increased public health through the optimization of space and the provision of facilities for exercise. This aligns with Nauru’s Sustainable Development Strategy 2019-2030 which aims to create “a future where individual, community, business and government partnerships contribute to a sustainable quality of life for all Nauruans’’. Box 2 provides an overview of the instruments currently in place to support land planning in Nauru and the benefits that can flow from linking the HGI Master Plan to a broader island-wide planning framework, while Annex A outlines the targets of SDG which could be potentially integrated into the HGI monitoring and evaluation framework.

Box 2: The evolution of land use planning and its importance to Nauru’s development

Land use planning in Nauru over the years has largely been ad-hoc with haphazard clustering of functions and congested plots. In recognition of this challenge, in 2017 the Infrastructure Asset Management Policy was approved for implementation – providing for asset management practices and decision support systems for development of land. In 2019, the National Integrated Infrastructure Strategic Plan (NIISP) was established with the expectation of improving land use planning in the provision of public services. With the HGI land use plan linked to the broader vision of the NIISP, there will be increased potential for growth in Nauru’s economy, improved resolution of land use conflicts, better use of the country’s limited natural resources, and improved potential to mitigate climate induced risks.

Because of its status as government owned land, Land Portion 230 creates an opportunity to avoid some of the housing challenges described in this section. Working from a blank slate offers an exciting opportunity to implement a holistic program that addresses then requirements of Nauru’s poor and vulnerable households, including the need for sturdy, safe and climate-resilient housing.

SECTION 3.0 CURRENT CONTEXT AND PRACTICE

2.0 Case Studies

Inadequate housing, especially among the urban poor is a phenomenon witnessed across most Pacific Island countries despite the social, cultural, economic, and political differences. Similarly, Pacific Island countries experience vulnerability to natural disasters, and perhaps even more so than Nauru, many have poor mechanisms to regulate housing, lack adequate infrastructure, experience land conflicts and face increasing poverty with limited economic growth and a dramatic increase in squatter settlements. 27

Within this context, several countries in the Pacific region have initiated either land tenure reforms to improve the housing situation by instituting governance measures to unlock the economic potential of customary land, or housing-focused measures to address ongoing housing challenges. In general, governments are responding to urbanization and housing challenges by trying to make more affordable freehold land available, establishing temporary leases for blocks of public land, or working closely with customary landowners to formalize existing settler arrangements, 28

With a view to providing inspiration to Nauru as it continues with the HGI, the following section sets out three case studies from Fiji, the Cook Islands and New Zealand where tenure, planning or housing reforms have been implemented in the context of customary land ownership, and any impacts these have had on addressing the housing challenges facing the poor. The fourth case study departs from the other three by describing participatory and inclusive land readjustment programs that have been developed to support improved access to secure land for the poor, and the lessons that can be drawn from this process for Nauru.

As a caveat - although the four case studies were selected due to their relevance to the challenges currently facing Nauru as described in section two, their direct applicability to Nauru is somewhat limited, given the highly unique circumstances Nauru faces visà-vis its neighboring countries and the general absence of evidence around successful housing practices in the region. Given the need for brevity, the case studies have also been kept deliberately light. Further information about any of the case studies and

specific approaches discussed below can be provided by the authors upon request.

Case Study 1: Fiji’s Efforts to support Low Income Housing Accessibility

Background

The demand for affordable and quality housing in Fiji has increased due to urbanization. The migration of citizens from rural areas to urban cities is due to ‘pull’ factors such as the search for cultural, educational, and economic opportunities and ‘push’ factors relating to conditions in rural areas and perceptions of such areas being underserviced by the government.

As of 2020 approximately 51% of Fiji’s total population was living in urban areas, with urban households predominately distributed around the Suva-Nausori corridor. 29 Urban and peri-urban settlements have developed as a result of this rapid urbanization –creating uncertainty over land rights and boundaries, which in turn are linked to other problems in the settlements such as conflict, crime and poor health and inadequate sanitation.30 Like Nauru, most of the land is Fiji, including the land occupied in urban settlements, is held under inalienable (i.e. non transferrable) customary tenure (88% according to the latest available statistics).31

Lesson 1: Enabling (Constitutional) Framework for Inclusive, Pro-Poor Housing

The right to accessible and adequate housing in Fiji is enshrined in the 2013 Constitution under Article 35 which provides:

(1) The State must take reasonable measures within its available resources to achieve the progressive realization of the right of every person to accessible and adequate housing and sanitation.

29 Cited in A Mausio ‘Spectre of neoliberal gentrification in Fiji: the price Suva’s poor must pay’ Asia Pacific Viewpoint, 2020 p. 2.

30 AusAid, Making Land Work: Reconciling customary land and development in the Pacific (Vol 1), 2008, 12.

31 See AusAid, Making Land Work: Reconciling customary land and development in the Pacific (Vol 1), 2008.

SECTION 3.0 CASE STUDIES

(2) In applying any right under this section, if the State claims that it does not have the resources to implement the right, it is the responsibility of the State to show that the resources are not available. 32

Fiji acceded to the CERSC on the 16 August 2018.33

Lesson 2: Importance of Regulatory Coherence and Clear Institutional Responsibility for Pro-Poor Housing

The Fijian Housing Act came into force in 1955 but it wasn’t until the 1980s that the state established the Housing Authority of Fiji (HA) and the Public Rental Board (PRB) through the Housing (Amendment) Decree No. 12 of 1989. While the HA was mandated to manage low-cost home ownership, the PRB was established to administer low-cost urban rental units.34 Both institutions were specifically mandated to support low-income housing, including with interventions that address informal and squatter settlements. In this area Fiji was among the first Pacific countries to consider processes to provide protections to informal settlements.

Several decades later, in 2011, Fiji developed its first National Housing Policy. This acknowledged the importance of shelter as a basic need and indicator for development and social wellbeing of the nation. The policy streamlined the administration of urban housing development (informal settlements, emergency housing and private housing) into one overarching framework – it is understood that previously there were 25 pieces of legislation that led to confusion over processes and procedures, delays and large administrative expenses.35 Under the policy, the Ministry of Housing and Community Development has supported innovation through the initiation of first home purchase, first land purchase programs, and survey for regularization of leases program. 36 As is

discussed below, the policy is currently being reviewed.

Lesson 3: The Need for Adequate Budgetary Investments in Housing

The Fiji government allocated F$10.9milllion in the 2021-2022 national budget to the Ministry of Housing and Community Development.37 The 2021 - 2022 budget indicates that the Ministry gives priority to vulnerable groups at the same time as achieving wider housing objectives. As per Table 1, there is currently a scheme in place to support first home purchase and construction. This includes F$30,000 grants to Fijians to build their first homes and F$15,000 to support those purchasing their first home.

Table 1: Indicative allocation for housing in the 2021-2022 Government of Fiji Budget

36 Fiji Budget 2021-2022.

poor must pay’ Asia Pacific Viewpoint 2020 p. 6.

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37 The allocation to housing is F$10.9 million from the total national budget which is at a total revenue forecast of F$2.08 billion and expenditure of F$3.69 billion.

Lesson 4: Importance of Public Consultations and Ongoing Dialogue with Stakeholders

The Housing Policy is currently under review, with public consultations having commenced in 2020. The review aims to identify opportunities and challenges, and comprehensively map housing supply and demand. Given the natural disasters that Fiji regularly suffers, the review is also examining climate resilience, including the potential to provide engineer certified housing plans and government assistance to retrofit homes to meet building standards.

The NGO sector, donor and international organization in Fiji have been involved in supporting voice for those with insecure housing and land rights, with several projects aiming to improve dialogue between squatters and the government to support voice for these groups.38 Habitat for Humanity through the “Terwilliger Centre for Innovation in Shelter” (launched in 2016) also facilitates inclusive housing market systems by making housing affordable for poor Fijians.

Lesson 5: The challenges of multiple-owned customary land can potentially be addressed through the establishment of an organization mandated to negotiate on behalf of customary owners

Fiji dealt with the widespread existence of customary land through the establishment of a Native Land Trust Board in the 1940s. Established by the government, the Board has full authority to conduct business in customary land on behalf of the landowners, with a mandate to make decisions with respect to customary land that are in the best interest of landowners. Under this structure, the Board can lease customary land for terms up to 99 years, except in the case of land for agricultural purposes, for which the maximum term is 30 years. This has streamlined processes for investments, including by the government and the private sector, in customary land.

Upon acquiring such a lease, the land can be transferred, subleased or mortgaged. Endorsement of all owners is not required for transactions to take place, although this has become more common. Rental fees provide the revenue for the Board with management fees constituting around 15% of the lease value. Incomes from the leases are then distributed among individual beneficiaries. This is feasible because under the Fijian system, not only is customary land registered, but also the names of all members of the land-owning clan. This register of names is regularly updated from the official register of births and deaths.39

While the link between these reforms and the development of accessible, propoor housing is unclear, it is understood that the process has supported substantial economic development in Fiji. As of 2008 (no more recent statistics were available) leases acquired by the Native Land Trust Board had generated approximately F$22 million a year (US $14 million), with the leases offering important support for the development of Fiji’s tourism economy.40 As noted by one author, this economic growth takes place “within a [legal] framework in which customary continues to be recognized and native lands remain inalienable.”41

Conversely, in a recent study on social housing in Fiji, Vunicagi (2016) notes that in Suva alone, approximately 66% of the total residential development is for the high income cohort whereas only 14% targets the low income bracket.42 The issue of land availability for the poor therefore remains pronounced in the capital “Unless the government addresses problems of land availability for low cost housing among other causal factors, Fiji’s urban housing crisis could see an increasing level of homelessness as more urbanized low to middle income earners will not be able to afford buying their first home. Suva’s inner-city spaces are becoming socially exclusive residential and

SECTION 3.0 CASE STUDIES

38 Housing-related NGOs in Fiji include, Habitat for Humanity, Save the Children, and the Ecumenical Centre for Research Education and Advocacy (ECREA).

39 Jim Fingleton, Pacific Land Tenures: New Ideas for Reform FAO, July 2008, p. 13.

40 AUSAID, Making Land Work: Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 52.

41 Jim Fingleton, Pacific Land Tenures: New Ideas for Reform FAO, July 2008, p. 14.

42 K. L. Vunicagi ‘Social Housing in Fiji. Is Social Housing applicable for the poor and low-income only or does it include other levels of income earners?’ Unpublished thesis (2016). Retrieved 15 May 2018.

business enclaves”.43 The author argues that the Fijian state needs to work closely with its investment arm, Investments Fiji, to vet capital intensive new-build joint venture bids/proposals (by local investors partnering with foreign investors) more stringently, to ensure that such projects do not violate the urban poor’s rights to the city.44

Customary owners in Nauru are unlikely to transfer their decision-making power to an all-powerful board as took place in Nauru. Further the legality (under the current Constitution) of such an institution could be questioned. On the other hand, the establishment of a unified register of owners of customary land (as took place in Fiji) who can benefit from potentially a government lease of conglomerate of customary land managed through a trust or incorporation (see case study 3) to support social housing action on infill or elsewhere on the island may serve Nauru’s objectives of preserving customary ownership while opening up pro poor housing opportunities for the government.

Case Study 2: Dealing with Absenteeism, Fragmentation and Land Shortages in the Cook Islands

Background

Like Nauru, the Cook Islands have a high incidence of absentee owners, with absentee ownership previously estimated to constitute approximately 91% of the population.45 Of the remaining 9% many have migrated from outer islands, living on land to which they have no customary rights.

Access to available land, especially for the poor and vulnerable is greatly complicated by the land rights of absentees – and specifically the legal framework which provides that all customary land can be exercised by all Cook Islanders, regardless of their

residence and whether they have even visited or lived in the Cook Islands. Under the legal framework, inheritance must also be divided equally between all children in accordance with a 1957 court decision – which has created enormous practical problems for land availability. 46

As a result of the equal inheritance rule and absenteeism, when leases are proposed, rental incomes are paid in tiny shares to all owners (regardless of location). This means that the administration that has the power to grant leases have no incentive to do so due to the administrative burden involved in disbursing the profits on the lease. In 2008 an AusAid study investigated six plots of land in Avarua, Rarotonga, finding that – from the 38 original owners formally awarded the title in 1908 – there were 1019 owners registered in 2005, or roughly 170 per section. The authors estimated that, given accurate records, recognition of customary title could mean up to 70 or more owners per household in the Cook Islands generally.47

Lesson: Legislation and regulation is needed to protect the rights of resident landowners – the definition of resident needs to be well-defined

No government since independence in 1965 has successfully addressed the issue of fragmented lands brought about by the 1957 court judgement concerning the right to equal inheritance. Although legislative reforms have been introduced to control the power of absentee landowners, these rules have not been effective – due to vagueness in the provisions/definitions of ‘resident’ and lack of enforcement.48

The lesson for Nauru is to consider, when determining who benefits from a government lease of customary land in infill or elsewhere under HGI, the importance of establishing

46 Jim Fingleton, Pacific Land Tenures: New Ideas for Reform FAO, July 2008, p. 17.

47 Ron Crocombe, Makiuti Tongia and Tepoave Araitia, ‘Absentee landowners in the Cook Islands: consequences of change to tradition’ in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 161.

48 For instance, the Land Facilitation of Dealings Act of 1970 requires that at least 25 per cent of those making decisions about leasing land be resident landowners. However, many absentee landowners return for the meetings about their land, affirm their rights and leave again. Many also give power of attorney or proxy voting rights to a co-landowner living overseas, who is sent as a representative to claim their land at the Land Court. Ron Crocombe, Makiuti Tongia and Tepoave Araitia, ‘Absentee landowners in the Cook Islands: consequences of change to tradition’ in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 160.

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clear definitions of residency to ensure resident and/or ‘present’ Nauruans are not excluded from economic opportunities to exploit new Nauruan land and unlock its potential. This perspective is supported in the literature – as argued by Crocombe et al “giving favor to resident landowners [and users] promotes better decisions about land use, because residents often have a greater interest in managing the land in a sustainable manner than do emigrants.”49

Case Study 3: Addressing Fragmentation and Restrictions on Customary Land in New Zealand through Land Trusts

Background

Māori Land is defined by the Te Ture Whenua Māori Act 1993 (hereinafter ‘the Act’). It constitutes two categories: (i) Māori customary land (very limited); and (ii) Māori freehold land, which accounts for about 98% of Māori land.50 Māori Freehold Land is held by individuals who have shares together as tenants in common. Māori freehold land is the land that will be discussed in this case study.51

Māori land is collectively estimated to constitute approximately 5.6 per cent of New Zealand’s total land area – or circa 1.56 million hectares. Māori land is almost exclusively handed down through successive generations to the current owners.52 As a result of a series of historical decisions, Māori land, like Nauru and Cook Islands,

49 Ron Crocombe, Makiuti Tongia and Tepoave Araitia, ‘Absentee landowners in the Cook Islands: consequences of change to tradition’ in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 167.

50 There is also a third category (iii) Māori general land – which is land that has passed out of Māori ownership when a minimum of five owners choose to reclassify it under the administration of the legislation and the Māori Land Court. See Māori Land Court ‘Your Māori Land’, last accessed July 2022.

51 This is land that has (i) been investigated by the Māori Land Court and a freehold order has been issued; or (ii) was set aside by the Crown as Māori freehold land and awarded by Crown Grants to specific individuals; or (iii) has had the status determined as Māori Freehold Land by order of the Māori Land Court. See Māori Land Court ‘Your Māori Land’ last accessed July 2022.

52 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 131.

is severely fragmented.53 The average number of owners as of 2008 was 73 per title.54 As Tingi has noted in the AusAid case study on the issue “The large numbers of owners registered against the land titles have produced a difficult situation that requires expensive and cumbersome management structures to administer the owners’ interest”.55

Similar to customary land in Nauru, the transfer (sale or gift) of Māori land is restricted to other Māori with affiliations to the titleholder. The exception to this rule is when 75 per cent of registered owners and the Māori Land Court approve the transfer. This means that most rights of access and use of Māori land are granted using leases

Lesson 1: Land trusts and incorporations can be a viable mechanism for Nauru to address land fragmentation, revert to group ownership and ensure transparent group management of land.

To address the decision-making blockages and lack of land productivity that stems from fragmentation of Māori land, New Zealand introduced the option to use land trusts or incorporations to manage Māori land. Following the requirements of the Act, approximately 64% of Māori land is currently controlled by incorporations and beneficial interests in trusts, with a collective value in 2003 (latest available statistics) of approximately NZ$1.5 billion and contributing around NZ$700 million to the New Zealand economy.56

53 During the English colonial period, the Native Lands Act instituted a procedure to prevent group ownership – namely to divide tribal land into several allotments and award each lot to no more than ten people (often from different clans or tribes). Fragmentation was accelerated further by the Act deeming all living children of the owners entitled to succeed equally to Māori land (a system adopted by the Cook Islands, as discussed above), ensuring that after just a few generations, large areas of Māori land had been divided into small, unusable portions. See Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008.

54 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 137.

55 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 137.

56 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 137.

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Incorporation means that the owners amalgamated individual titles of Māori land groups into groups under a single administration and management structure. An elected committee of management (between three and seven members) is responsible for developing and managing the incorporated lands. To become incorporated landowners must satisfy the Māori Land Court that the owners (i) agreed to the order by passing a resolution at a meeting, or (ii) 15% (minimum) of the aggregate shares in each block of land consent to the order. Upon incorporation the landowners’ become shareholders and their shareholding is based on their share in the value of the land or assets of the incorporation. Each owner’s shares are recorded in a “share register” maintained by the corporation.57 While land sales remain severely restricted, the incorporation can lease the land, including to shareholders or nominate owners to develop parts of the land.58

Land trusts is a more common ownership structured used by Māori landowners to administer their land interests due to the simpler procedures involved in this process vis-à-vis incorporation.59 The Act states that a trust of Māori land requires: (i) land versed in the trust to be trust property (ii) a trustee to have control of the property (iii) beneficiaries. Trusts are subject to the general law of trusts and can be formed at family, sub-tribe or tribal levels. There are five categories of trust under the Act. The two most popular, and most relevant to Nauru are described in Table 2 below.

Table 2: Description of the two main trusts used for Māori land

Type of Trust Purpose Attributes 60

Ahuwhenua Support economic and cultural development of the land. These are intended to facilitate management of an area of land owned by subtribes or tribes comprising many families.

Land based trust manages Māori land blocks on behalf of landowners. The land, along with any encumbrances the title carries, is vested in trustees. Similar to an incorporation i.e., can establish a subsidiary limited liability company to gain greater commercial freedom and credibility. The trust embraces wider social groups.

Under the legislation Ahuwhenua trusts can appoint the Māori Trustee to carry out work for them. This is common where owners are unable to administer their trust affairs.

Whanau Main use is to maintain family interests in land by halting further succession and fragmentation of title. Aims to promote social, cultural and economic welfare of the descendants of the original owners.

Share based trust – hold shares in multiple-owned or solely owned Māori land blocks. Each trust is established with family and extended family members who are the beneficiaries of the trust. Part or all of an individuals’ shares can be placed into the trust. The shares don’t have to be broken into smaller pieces and can be held together in the trust.

57 Jim Fingleton, Pacific Land Tenures: New Ideas for Reform, FAO, July 2008, p. 7

58 Jim Fingleton, Pacific Land Tenures: New Ideas for Reform, FAO, July 2008, p. 7.

59 AusAid, Making Land Work: Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 23

60 For further details see Māori Land Court ‘Māori Land Trusts and Incorporations’, last accessed 26 July 2022.

A critical consideration in considering this vehicle to manage customary land is voting rights and understanding the balance of rights between minority shareholders (incorporations) or beneficial owners (trusts). In New Zealand the one-vote-per-person decision making tends to out-vote small numbers of majority shareholders.61 This contrasts with the poll vote system where the interests of minority shareholders/ beneficial owners bear little weight compared with the interests of a small number of major shareholders/beneficial owners.

For Nauru, and from a pro-poor housing perspective, adopting a decision-making structure for customary land that has a one-vote-per-person approach may be preferable. The drawback is that there is some evidence from New Zealand that this leads to a conservative, risk-averse attitude towards development proposals over some Māori land.62 Indeed, research shows that owners tended to vote for investments that supported culture and local employment, rather than commercial viability.63

The presence of an overriding power of the Māori Land Court to remove committees and trustees and ensure fairness in decision-making and prevent abuse of power could also be something that Nauru considers when understand how to ensure appropriate controls on management committees. In New Zealand, however, it has been suggested that the court’s jurisdiction to override decision-making can impact on the willingness of investors to invest in such structures.64

Lesson 3: Selection procedures for management committees and trustees need to be well-devised to ensure representation and pro-poor voices. The development of business experience is necessary due to the complexity and specialized skills needed to run an incorporation or trust.

A major constraint in the effectiveness of incorporation and trust structures in supporting pro-poor developments is the business acumen of the committee or trustees. To this end, appointments of general managers or CEOs are becoming more common among structures that are large enough to justify the cost. In one case, the CEO was required to develop investment strategies to consolidate farming businesses and investigate alternative investments to diversify the incorporations activities.65 In the case of Nauru, it is difficult to determine at this point whether this type of structure would be financially viable.

In addition to this, the Ministry of Māori Development, which has 120 land offices throughout New Zealand, has established staff dedicated to land development. The Māori Land Facilitation Service aims to help Māori increase the commercial use of their land, focusing on improving or designing new governance structures, improving information, and increasing education and training to improve governance, management and administration. Nauru’s Housing and Survey Department will need to be sufficiently resourced and trained to support customary management committees fulfil this elevated role, should this vehicle for managing disparate multiple-owned Nauruan land be adopted.

Lesson 2: Provision of accessible land information is key to effective policy, the attraction of investors. In the context of land inalienability improving access to credit requires government underwriting of loans.

63 Cited in Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 143

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Whilst criticized for its historical role in alienating Māori land, the Māori Land Court has recently been credited for its proactive facilitation of the better use of Māori land

61 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 142.

62 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 143.

64 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 143.

65 This refers to Aithau-Whanganui Incorporation, formed in 1970. As of 2007 the land size was circa 20 000 hectares.

by improving the quality of information available to landowners.66 This work includes the Māori Freehold Land Registration Project, which aims to register all outstanding Māori freehold land titles with registration key to enabling Māori landowners to obtain a provisional or fully registered title thereby allowing landowners to use their land as collateral, which increases development options. The court has also established Māori Land Online website which gives users access to up-to-date information about blocks of land or incorporations and trusts, including ownership structure, titles, names of trustees or committees of management, and lists of shareholders. The utilization of accessible and transparent procedures will be critical to ensure the processes around HGI are perceived to be fair and inclusive, with sufficient lead time for all owners of land to be identified.

From a pro-poor housing perspective, the systems adopted in New Zealand to increase knowledge around rights and options and opens the specter of improved participation in decision making over customary land for individuals from different economic and social backgrounds. They may also increase the potential to access credit lines that were not previously available through innovative means – for example, the utilization of joint ventures between two neighboring incorporations. Where appropriate this can overcome restrictions on the use of Māori land as collateral.

Nonetheless, in general, restrictions on the transfer of Māori land, like those that exist in Nauru, means that Māori land incorporations and trusts still struggle to access credit. Recent initiatives such as the Kainga Whenua Loans for individuals support Māori to achieve home ownership on multiple-owned land or to allow individuals to repair and maintain their land. A recognised bank, Kiwibank, will approve and provide the loan once lending criteria is met. The Kainga Ora (Department of Housing) will underwrite the loan for Kiwibank, with the loan secured only against the house, not against the house and land as with most lands. Evidence of a satisfactory building contract, license to occupy the land and of valuation is the condition for the loan.67 The policy is deliberately pro-poor in that it is only available to those people that have no other

access to finance to build, relocate to or buy on their multiple-owned Māori land.

Relevantly, the New Zealand government will undertake a review in Q1 of 2023 on the barriers that make it difficult for Māori to utilize their own land for housing developments and that prohibit them from establishing a physical connection to their whenua/land, 68 which can be provided to the HGI upon conclusion.

As noted in the introduction, while Nauru has sought to introduce housing affordability programs, these efforts have not resulted in large numbers of uptake. The reasons for the limited success of these programs are not known to the authors at present but need to be investigated to ensure they are not repeated in the Land Portion 2030 initiative.

Case Study 4: Addressing Effectively the need for Resettlement in PNG

Background

Ninety-seven percent of land in PNG is customarily-owned, meaning that the land is owned in common by a distinct tribe, clan, or community, while individuals only have user rights to land. Only 3% is alienated land, i.e., owned by the state or a private individual or group. Much of this customary land remains outside the country’s Torrens title system.69

Customary land registration has not progressed given the absence of a customary land registration law and the weak capacity of the government. There also is resistance to register under the Torrens system, as land ceases to be governed by custom once a Torrens title is issued. In Papua New Guinea and many other Pacific countries, the supply of State-owned lands is almost exhausted, and there are increasing demands to free up access to customary lands – this has led to challenges in terms of how to deal with people living on customary land needed for development purposes.

68 The National Māori Housing Strategy: 2021-2051, available here.

69 ABD

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66 Tanira Kingi ‘Māori Land Ownership and Land Management in New Zealand’, in Reconciling customary land and development in the Pacific (Vol 1), 2008, p. 141.

67 See Kainga Whenua Loans for Individuals available here.

Case Study 5: GLTN’s Participatory and Inclusive Land Readjustment to support improved access to services and land for housing

Background

Conventional approaches to land readjustment have had limited success in developing countries. Even if they have aimed to benefit the poor, they have often failed to do so. By ignoring the needs and opinions of the poor, land readjustment usually ends up profiting local power brokers and property developers and poor and vulnerable people are evicted.70

To address this challenge, Participatory and Inclusive Land Readjustment (PILaR) has been adopted in several developed and developing contexts. It provides access to land for the public and the poor, as is needed in Nauru, by capturing a proportion of the value created by development. In obtaining this additional value, the authorities have much greater capacity for intervention.

The PILaR process involves pooling all the land parcels in a particular area and planning them as a unit. Roads can be put in, and sewerage and other infrastructure installed. Agreed portions of the land are then reallocated to the original owners. Each landowner gets back a plot that is smaller than the area he or she originally contributed to the common pool, but its value is now worth more: its value has gone up because of proper planning, rezoning, added infrastructure, and improved services.71

PILaR can be used where there is little or no formal land ownership, and few or no registered land parcels. It can also be applied in situations similar to Nauru where landholders have rights (or claims) to plots of land in a variety of formal and informal arrangements (i.e., with extended family etc.). Some of the pro-poor benefits of this approach is that the financial framework that is applied does not just benefit the landowners and municipality/government, but also people who do not formally own

70 GLTN, Remaking the Urban Mosaic: Participatory and Inclusive Land Readjustment, 2016, xiii.

71 See Allan Cain, Beat Weber and Moises Festo ‘Participatory and Inclusive Land Readjustment in Huambo, Angola’ in F De Souza et al (eds) Land Readjustment: Solving Urban Problems Through Innovative Approach (2018), pp. 100-102.

land, the tenants, and the poor - 72 i.e. the authorities may retain part of the area for sale or for other uses (such as affordable housing including through the creation of multi-storey buildings to replace single-storey shacks).

Of relevance to Nauru, PILaR can be used to redevelop areas that are already built up – for example to make an existing neighbourhood more suited to new uses, convert a low-density area to a higher density, rejuvenate a run-down inner city, or rebuild after a disaster such as a conflict or earthquake. The process is also suitable for Nauru – potentially in infill areas - as it relies on establishing consensus rather than the compulsory acquisition.

The main difference between the PILaR approach and conventional land readjustment is that the involvement of all stakeholders at each stage in the project – including formal owners, other landholders, tenants, informal residents and others who may be affective. Emphasis is put on reaching individuals who are usually ignored (elderly, women, youth etc.). For this reason, the process can be time-consuming and resource intensive to be done successfully, but the results are ‘win-win’ for all. Box 3 describes the outcomes of a PILaR program in Angola.

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72 GLTN, Remaking the Urban Mosaic: Participatory and Inclusive Land Readjustment, 2016, xiii.

Box 3: Pro-poor housing outcomes using PILaR in Huambo, Angola

In Huambo, Angola, PlLaR led to pro-poor housing outcomes – of the merged land, roads took up 30% of the whole area. The remainder was then divided into plots. Half (35% of the total area) was redistributed to existing rights holders, and the other half was sold to cover the costs of infrastructure. Bulldozers were brought in to make roads, a bridge was built to connect the area with the rest of town, and four wells were dug to provide drinking water. The landholders each received documents to confirm their rights to their new plots. Following the PILaR Huambo became a socially diverse community with a range of income groups, from poor to middle class. Some of the original landholders sold part of their plots, but most have built houses and they or their relatives still live there.73

Remaking the urban mosaic

Participatory and inclusive land readjustment

Three relevant lessons that are relevant to supporting pro-poor housing outcomes in Nauru have been extracted from the GTLN Handbook:74

Participatory and inclusive land readjustment, or PILaR for short, is a way of reorganizing the ownership of land in and around cities in a pro-poor way. It brings together land parcels belonging to different owners and treats them as a single unit for planning and infrastructure provision. The municipality reserves a portion of the land for roads and other public infrastructure, and returns the rest to the original owners. Each owner gets back a smaller parcel, but it is worth more because it now has road access and other services. PILaR involves all the stakeholders – landowners, the municipality and residents – in planning and managing this process. Everyone has a say, and everyone benefits.

• Provide enough affordable housing: land readjustment projects typically do not build enough affordable or social housing: local authorities cannot plan and build such housing, and projects are sometimes taken over by the private sector that has little interest in doing so.

This book describes how to implement PILaR. It guides the reader through the various aspects of this complex process: governance, land management policies, planning and design, collecting and analysing data, engaging with stakeholders, legal issues, finance and communication. It will be of interest to urban managers, land professionals, landowners, representatives of residents and other stakeholders who are considering or are involved in land readjustment projects.

Remaking the urban mosaic

Remaking the urban mosaic

Participatory and inclusive land readjustment

HS Number: HS/006/16E

ISBN Number: 978-92-1-132699-4

• Ongoing and inclusive stakeholder consultation is key: the local community and other key stakeholders must be consulted and involved from the beginning to ensure that their voices are heard, and interests taken into account. Urban development projects often fail to involve the poor, who end up worse off than before or are even displaced.

UNITED NATIONS HUMAN SETTLEMENTS PROGRAMME

UN-Habitat

Urban Legislation, Land and Governance Branch

For more information please contact us:

GLTN Secretariat facilitated by UN-Habitat

Land and GLTN Unit

P. O. Box 30030, Nairobi 00100, Kenya

Tel: +254 207623120; Fax: +254 207624266

Website: www.unhabitat.org

• Embed the process in broader urban planning: to ensure consistency, land readjustment must be part of the overall urban plan (or Master Plan in Nauru’s case) and be related to other urban development projects. If not, confusion, hostility and litigation may result.

P.O. Box 30030, Nairobi 00100, Kenya

Tel.: +254 20 76 5199; Fax: +254 20 762 4256

Email: gltn@unhabitat.org

Website: www.gltn.net

73 GLTN, Remaking the Urban Mosaic: Participatory and Inclusive Land Readjustment, 2016, 1.

the findings in GLTN, Remaking the Urban Mosaic: Participatory and Inclusive Land Readjustment, 2016, pp. 8 -10.

74

These lessons have been drawn from

Concluding Observations and Implications for the HGI

This paper has shown that Nauru’s housing challenges, including around land scarcity, are exacerbated by the country’s restrictive land tenure system and inadequate land planning system. The HGI and work around Land Portion 230 provides an exciting opportunity to work from a fresh perspective and avoid the challenges that have impacted on the development of adequate housing for all elsewhere on the island.

While this report offers no ‘silver bullet’ solutions to the task facing the HGI Steering Committee, it does provide some points as to:

• Why land reform and planning matters for housing quality and quantity and accessibility for the poor (section 2 and case studies).

• How land can be developed to address housing shortages whilst retaining customary principles (NZ and Fiji case studies).

• Pitfalls to avoid in determining entitlements emanating from any leases of sites under Land Portion 230: including around ensuring that presence and residency is considered in terms of who can make decisions over land impacted by the HGI and the involvement of absentee owners (Cook Islands case study).

• Institutional efforts needed to support an effective land modernization system that captures the voices of the poor: Nauru should consider establishing an online and physical system for informing and registering all those who have an interest in land (NZ case study), ensure sufficient budgetary allocations for housing initiatives on Land Portion 230 (Fiji case study and GLTN) and sustained participation of stakeholders over the entire duration of reforms (GLTN case study). An effective and independent monitoring system through a devoted court or commission (NZ case study) can be useful in overseeing decision making and ensuring compliance with rules of fairness and equity when it comes to Land Portion decision making and the utilization of customary land. Progressive next steps may involve supporting the institutional mandate, functions, and capacity of the housing division within the Department of Survey and Lands to facilitate HGI implementation.

• Ways to avoid increasing the administrative burden and unlock pro-poor potential of customary land in the context of multiple owners and diminishing

plot sizes: processes for incorporation and/or the use of land trusts (NZ case study) could be adopted on some sites or for some land uses to deal with the multiple owners of small plots and streamline decision making (NZ case study). Especially in residential areas this approach may facilitate maintenance of land and effective use of common/public spaces. Alternatively, the utilization of land adjustment using a participatory approach (GLTN case study) could be useful for landfill area of the HGI.

• The challenges the poor face in participating in land administration bodies and voicing their housing needs: pro-poor housing outcomes requires sufficient support and training for communities to effectively deal with the legal and financial requirements of running entities designed to consolidate their interests - such as a trust or incorporation (NZ case study). The constitution, membership and responsibilities of these vehicles must adequately balance the development/ commercial incentives of majority shareholders or beneficiaries with the needs and cultural desires of minority (likely low-income) shareholders or beneficiaries.

• Mechanisms to support access finance for first home purchase and home renovations in a legal context where customary land is inalienable or subject to multiple restrictions: Nauru could partner with a local bank to support grants or incentive to first home buyers and those building their first homes, with clear propoor and vulnerable persons criteria for selection (Fiji and NZ case studies). Criteria for selection could also require that designs are future-proof and in accordance with the HGI masterplan or approved national plans and building regulations. Critical in this regard is the need for the Government to underwrite the loan and for the loan to be for the house rather than the land, given the restrictions on non-Nauruans physical persons owning land. Further investigation is required to understand the detractions and challenges of previous Nauruan housing schemes that reached an extremely limited number of Nauruans.

• The significance of a foundational legal and policy framework for adequate housing to ensure pro poor housing is prioritized moving forward (Fiji case study). Nauru could consider enshrining the right to adequate housing in its constitution to provide protection to Nauruans, and to establish a legal basis for pro-poor actions moving forward under the HGI. Related, the country could

consider acceding to the CESCR. A national housing framework or policy, to be piloted by HGI, would also help to bridge the gap between supply of quality housing and the demand, set up a clear strategic direction on addressing challenges of adequate, pro-poor and quality housing, supported by a comprehensive housing survey (Fiji case study).

Moving forward, the following actions could be undertaken to effectively integrate poor-poor housing into the designs of the HGI and specifically Land Portion 230:

1. Address information gaps regarding housing challenges in Nauru. This can be achieved through the undertaking of a comprehensive housing review. This review should include an assessment of the benefits and drawbacks of the current petition process and make recommendations as to how the system could be reformed to support improved pro-poor housing outcomes. The result of the review should also be initial criteria for housing allocation on Land Portion 230.

2. Pilot community consultation for housing options in infill areas and Land 230. As noted above, early effective engagement, especially with the poor and vulnerable, will help to distil mistrust and bring consensus over how land should be used to support housing needs.

3. (Long-term) Undertake a review of the sufficiency of the legal and policy framework to support the utilization of trusts (or incorporations) over customary land in infill and other areas, including recommendations for law reform. Acknowledging that the complexities of incorporations in Nauru may make incorporations unfeasible, the review should also highlight the appropriateness and drawbacks of applying these systems to the leasing of customary land outside of the government-owned Land Portion 230.

Annex A - Overview of SDG 11: Inclusive, safe, resilient, and sustainable cities

This Goal aims to ensure access for all to adequate, safe, and affordable housing and basic services and upgrade slums by 2030. 75 The HGI should consider incorporating the relevant targets under this SDG in its monitoring and evaluation framework. The targets of SDG 11, with those in bold particularly relevant for Nauru and the vision of the HGI are as follows:76

11.1 By 2030, ensure access for all to adequate, safe and affordable housing and basic services and upgrade slums.

11.2 By 2030, provide access to safe, affordable, accessible and sustainable transport systems for all, improving road safety, notably by expanding public transport, with special attention to the needs of those in vulnerable situations, women, children, persons with disabilities and older persons.

11.3 By 2030, enhance inclusive and sustainable urbanization and capacity for participatory, integrated and sustainable human settlement planning and management in all countries.

11.4 Strengthen efforts to protect and safeguard the world’s cultural and natural heritage.

11.5 By 2030, significantly reduce the number of deaths and the number of people affected and substantially decrease the direct economic losses relative to global gross domestic product caused by disasters, including water-related disasters, with a focus on protecting the poor and people in vulnerable situations.

11.6 By 2030, reduce the adverse per capita environmental impact of cities, including by paying special attention to air quality and municipal and other waste management.

75 See UN DESA ‘SDG 11: Make Cities and Human Settlements Inclusive, Safe, Resilient and Sustainable’ accessed July 2022.

76 See UN SDGs ‘Goal 11: Sustainable Cities and Communities’, last accessed July 2022.

11.7 By 2030, provide universal access to safe, inclusive and accessible, green and public spaces, in particular for women and children, older persons and persons with disabilities.

11.A Support positive economic, social and environmental links between urban, peri-urban and rural areas by strengthening national and regional development planning

11.B By 2030, substantially increase the number of cities and human settlements adopting and implementing integrated policies and plans towards inclusion, resource efficiency, mitigation and adaptation to climate change, resilience to disasters, and develop and implement, in line with the Sendai Framework for Disaster Risk Reduction 2015-2030, holistic disaster risk management at all levels

11.C Support least developed countries, including through financial and technical assistance, in building sustainable and resilient buildings utilizing local materials.

SECTION 4.0

LAND TENURE CHALLENGES AND OPTIONS FOR THE HIGHER GROUND INITIATIVE:

WORKSHOP PRESENTATION SUMMARY

SECTION 4.0

SECTION 4.0

Land Tenure + Social Safeguarding Land Tenure Challenges and Options for the Higher Ground Initiative: Workshop Presentation Summary

Introduction

The following summarizes the presentation provided in the workshop proceedings for Design Review of the Higher Ground Initiative, delivered via Zoom on August 24, 2022, specifically of those proceedings pertaining to the issues of land tenure related to the design and implementation strategy of the master planning process.

Land Tenure is the relationship between people with respect to land/natural resources. Depending on the local context, rights and responsibilities ascribed to land tenure can either be defined in law or can be established by customary practice. These rules define the allocation of rights, restrictions and responsibilities in which land is held, used, and transferred or inherited, as well as the responsibilities associated with maintaining that land. Within the context of Nauru, land tenure is not enshrined in law, but is founded in customary practice. Furthermore, land use classifications are described in law in Nauru, but it is important to note that this is not formal land tenure.

Land administration is the application and operation of land tenure rules. It encompasses land tenure, land value, land use, land development, land information, and the supporting land policies and institutional framework. Where rights and responsibilities ascribed to land are exchanged, this constitutes a land market: a system that allocates ownership and use rights, with appropriate institutional checks and balances. The land administration regime in Nauru is characterized by the application of customary land tenure, with no land use and/or development controls. The Nauruan legal framework controls include limits on who can own/lease land, a process for dealings, and mortgages. Importantly, there is limited land information in Nauru, so these land-based rights and responsibilities are administered without ample or even adequate documentation of land records in place.

The mandate of this project for the Higher Ground Initiative is to deliver a master plan for the entire island of Nauru. In order to implement such a plan, land parcels will need to be documented, legal uses of land will need to be adapted, and rights and responsibilities for land parcels will need to be transferred. In short, the land administration regime in Nauru will need to be reformed; land tenure and land administration that is secure and transparent will enable the HGI to evolve from plans to reality.

Important Considerations for Consultations

• Public and cross-government consultations on the land tenure options and land use changes contained in the Master Plan will be key to the sustainability of the HGI process and ensuring it achieves its objectives.

• Setting-up an initial process in Phase II to allow public input on how land will be used under HGI, the process of allocation and systems for transferring rights will be essential for long term buy-in and the receipt of financial support from development partners.

• This process could tap into existing consultation committees – for instance those established under the NSUDP. Alternatively, a new consultation body could be set up.

• Important to avoid ‘consultation fatigue’. It is also important to ensure diverse viewpoints are heard.

• Feedback loops should be set up to ensure that the public can understand how decisions were made and how their views were incorporated into the planning and decision-making process.

Image credit: A Global Land Management Perspective, Stig Enemark, April 2004.

Chapter 1. Introduction

Land Tenure decisions for Land Portion 230

The land tenure decisions that the Government must make include around Land Portion 230, based on the Master Plan include: what land rights, restrictions and responsibilities are being granted/transferred; and who will they be granted/transferred to? In determining how to manage land tenure on Land Portion 230, Nauru can its previous experience in: creating public space, roads and infrastructure, government property, and community institutions (e.g. churches)

In addition to addressing the ways in which land rights and usage is managed on Land Portion 230, there are further considerations that the Government must address, including: whether lots will be purchased/granted outright, or leased; what the payment/grant terms will be; whether there will be development controls (restrictions) on the various property types, uses, and relationships; and what controls are needed to ensure sustainability (e.g. maintenance, financing?). Specific to consideration of the large amount of public space planned for the development, there are two primary options. The first is that public space is owned and/or managed by the Government, which would grant the Government maximum control over the use and upkeep of the property but will require a higher level of financial investment both in fair acquisition of rights to the land as well as ongoing maintenance costs. Alternatively, public space could be owned by individuals and/or groups, a choice which comes with the benefits that standardizing rights, restrictions, and responsibilities can offer in removing socioeconomic imbalances. In either case, the Government must consider what will best serve all Nauruans.

KEY QUESTIONS REGARDING LAND TENURE FOR LP230:

• How should LP230 be allocated:

• Does the government want to retain ownership of the entire portion?

• Should the government sell LP230 as one or more separate portions?

KEY CONSIDERATIONS REGARDING LAND TENURE FOR LP230:

• Who has what rights?

• Who has what responsibilities?

• What are the restrictions?

• What is the mechanism to implement / what administration is required?

1.1 OPTIONS FOR LP230 HOUSING ALLOCATION

Option

Sub-Options

Length of leasehold: i.e 5 year with purchase/renew option, 99 years, etc.

Rights transferred: able to inherit, transfer, subdivide? Lease land or house only?

Rent payment: monthly/annual rent etc.

Limitations on use: maintenance requirements / building compliance

Residential/Commercial/Community: allows for management of alternate land uses

Administrative responsibilities: who manages leases? who manages communal areas and services? An existing administration or a new authority, etc?

Who is eligible?: Private entities (individuals, families, corporations?), government entities, groups

Application process/criteria: First in/fastest, those without land, those able to comply with lease conditions etc.

Basis for private ownership: type of basis/legal amendment necessary (unless considered customary land?)

How to sell: auction to highest bidder? by application/tender?

Rights transferred: able to inherit, transfer, subdivide? Sale prior to house building?

Restrictions/Responsibilities: limitations on use, building controls, responsibilities (e.g. maintain house)

Basis for ownership: type of basis/legal amendment necessary? keep fractional ownership system?

How to sell: auction to highest bidder? by application/tender?

Rights transferred: able to inherit, transfer, subdivide? Sale prior to house building?

Restrictions/Responsibilities: limitations on use, building controls, responsibilities (e.g. maintain house)

Administration: how to manage (via trust, corporation, customary processes, etc.)?

SECTION 4.0 OPTIONS FOR LP230 HOUSING ALLOCATION

1. State retains ownership, i.e. Housing allocated as 5-99 year leasehold

2. State sells (smaller) sub-portions to private individuals for private ownership

3. State sells (larger) sub-portions to private/group entities for submanagement

Chapter 2. Intoduction

Land Tenure Decisions for New Township and Island-Wide Master Plan

When considering the development beyond Land Portion 230, including the New Township and the rest of the proposals across the island, the Government must consider how existing land tenure will integrate with the New Township scheme, and with the broader proposals documented in the island-wide master plan, especially measures that may encourage popular consent to changes and/or participation in the proposed schemes. Important aspects of the master plan to consider include: those properties immediately neighboring Land Portion 230 and most likely to impact (and be impacted by) its development; those properties implicated in proposed changes of land use, e.g., new public spaces, conversion of current residential to commercial use properties; and those properties with proposed changes in allowed density, e.g., additional housing.

Because of the considerable breadth of land uses and functions included in these proposals, the Government must consider how existing land tenure can integrate with the island-wide master plan scheme, including: lakes and reservoirs; agricultural lands and farm lots; and forest, topsoil and ecological regeneration, and natural preserves. The Government must also consider what options are compatible with Nauruan culture and vision, including: a formalized land/housing exchange, e.g., could land portions in identified regeneration areas be exchanged for land portions in LP230? or a formalized land/housing readjustment, e.g., could one or more land portion holders in the Location or New Township area ‘readjust’ their portion/s to facilitate more housing and new land uses. Further recommendations related to island-wide land tenure decisions will be difficult to make without clarity on Government intent regarding the process of acquiring land for the implementation of the master plan and/or the level appetite to introduce legal reforms to the land tenure system. It is unclear at this time, whether a fiscal/economic study has been undertaken to help inform such decisions, information that would be crucial to further input.

KEY QUESTION REGARDING LAND TENURE FOR NEW TOWNSHIP AND ISLAND-WIDE MASTER PLAN:

• How will new land uses defined in the Master Plan be realized?

KEY CONSIDERATIONS REGARDING LAND TENURE FOR NEW TOWNSHIP AND ISLAND-WIDE MASTER PLAN:

• Who will be impacted?

• How will the measure be enacted?

• What support will be required?

SECTION 4.0 CHAPTER 2 INTRODUCTION

1.3 OPTIONS FOR NEW TOWNSHIP/MASTERPLAN/INFILL

Sub-Options

Scale: national, district, selected parcels ?

Systematic or sporadic: national strategy or facilitate more sporadic applications?

Integration of development controls: no development controls or slow introduction?

Administrative measures: manage under existing capacity/processes or facilitate reform?

Housing support measures/responsibilities: funded by applicants, subsidised by government?

Scale: national, district, selected parcels

Systematic or sporadic: national strategy or facilitate more sporadic applications

Integration of development controls: no development controls or slow introduction

Administrative measures: manage under existing capacity or bring in new body to manage

Housing support measures/responsibilities: funded by applicants, subsidised by government?

Scale: national, district, selected parcels

Rights transferred: government lease/purchase à recipient lease/purchase/grant

Systematic or sporadic: national strategy or facilitate submissions ?

Administrative measures: which agencies have what responsibility ?

Housing support measures/responsibilities: who funds?

Scale: national, district, selected parcels

Rights: Any change of rights?

Administration: Devolution of responsibility to recipient groups

Housing support measures/responsibilities: who funds and how?

SECTION 4.0 OPTIONS FOR NEW TOWNSHIP/MASTERPLAN/INFILL

1. Managed Housing petition process: status quo, with additional support

2. Direct dealings: existing ownership retained, leases granted to public agencies, individuals families, etc.

3. Government acquisition of land and managed reallocation

Option

4. Land readjustment

Chapter 3. Introduction

Case Studies and Lessons from the Pacific

Nauru’s land tenure situation is unique. Nonetheless, some of the challenges that it is facing as it concerns the Master Plan have been confronted by other countries in the Pacific, albeit in different legal and social contexts. These include: (i) how to relocate populations in a manner that is fair and sustainable; (ii) how to develop effective land management systems that retain customary land ownership but also ensure that land can be used for economic investment, including in contexts of high land fragmentation and owner absenteeism; and (iii) how to ensure land disputes are handled transparently and effectively. The four case studies set out the approach adopted to address each of these issues, as well as lessons that are relevant to Nauru.

SECTION 4.0 CHAPTER 3 INTRODUCTION

Image credit: Nauru Department of Commerce, Industry and Environment - Agriculture Division Facebook page

3.1 Land Allocation and Resettlement in PNG

Mechanisms for allocating LP230 and subsequent plots is a key question for Nauru.

3.1 Land Allocation in PNG Corporate Bodies

Mechanisms for allocating LP230 and subsequent plots is a key question for Nauru.

PNG has experience from >130 schemes to resettle people/allocate land. In all cases, land for resettlement was gover nment owned. Successful applicants were granted 99 year leases which were transferable/inheritable and subject to annual rent.

PNG has experience from >130 schemes to resettle people/allocate land. In all cases, land for resettlement was government owned. Successful applicants were granted 99 year leases which were transferable/inheritable and subject to annual rent.

Targeted individuals had been displaced.

Clear allocation process: applications, interviews by Land Board Government-owned land

Lessons

• Significant investment by government required – the more expensive schemes did better.

• Social integration mechanisms were necessary.

• It was critical to ensure that those resettled could meet lease conditions (consider employment, income)

• Eviction should not be considered an enforcement mechanism. A plan for how to manage and enforce lease conditions should be in place.

99 year lease, annual rents (5% UCV)

SECTION 4.0 LAND ALLOCATION IN PNG

3.2 Corporate Bodies in NZ, PNG, Vanuatu

3.2 Trusts / Incorporated Bodies in NZ, PNG, Vanuatu

Effective and transparent management of communities, public spaces and disputes on LP230 will likely require some form of community body. Commercial initiatives on customary land may also require efficient decision making.

Effective and transparent management of communities, public spaces and disputes on LP230 will likely require some form of community body. Commercial initiatives on customary land may also require efficient decision making.

Lessons can be drawn from examples in New Zealand, PNG and Vanuatu where trusts and incorporated bodies are a vehicle to ensure transparent group management of land with multiple owners.

Lessons can be drawn from examples in New Zealand, PNG and Vanuatu where trusts and incorporated bodies are a vehicle to ensure transparent group management of land with multiple owners.

Corporate Bodies

Subject to general ‘law of trusts’. Typically formed at family, tribal or sub -tribal levels. These trusts are regulated by the Maori Land Court.

Lessons

Clear allocation process: applications, interviews by land board

Customary land groups incorporate to register land titles and establish Constitution for roles/responsibilities. Primary purpose to manage mining licenses and royalties. Many problems associated with lack of capacity to manage financial assets.

Government owned land

• Examples closely link law (e.g. trust law) with customary and administrative practice. Work best where law bends to practice (not reverse).

• Mechanisms for flexibility, review and change necessary to adapt to new conditions.

• Regardless of type, in all contexts the administrators required support for financial and administrative management.

99 year lease, annual rents (5% land value

UCV)

Enabled by trust legislation. Careful blending of modern law (trust bodies) and customary practice (drawing on village chief and committee of elders). Enabled revenue collection, service provision and community decision making. Challenges associated with younger generation demanding change.

SECTION 4.0

• Structure of the committee / body needs to align with function or purpose of the body and its responsibilities. I.e. complexity of management needs to be assessed.

CORPORATE BODIES IN NZ, PNG, VANUATU

3.3 Lease Agreements in PNG

3.3 Lease Agreements in PNG Corporate Bodies

The June Valley Pilot Project in PNG was used as a trial for settlements on customary land. The intent was to regularise the site in a manner that could be replicated to protect both migrant and customary tenure-holders rights. June Valley covered an area of 34.5 hectares, and was occupied by 270 households (1,626 persons).

Lease agreement steps

Incorporation of landowning groups, giving legal status, a constitution and legal decisionmaking powers for customary lands management.

Reincorporation of incorporated land groups as companies to enable commercial operation.

Enter into a management agreement : giving company exclusive authority to manage the land and execute lease agreements.

Execute Lease Agreements between managing company and the lessee of each block.

Lessons

The June Valley Pilot Project in PNG was used as a trial for settlements on customary land. The intent was to regularise the site in a manner that could be replicated to protect both migrant and customary tenure-holders rights. June Valley covered an area of 34.5 hectares, and was occupied by 270 households (1,626 persons). SECTION 4.0

• Direct dealings between customary owners and new occupants ensure the land stays under customary tenure, and limiting government intervention.

• Standardised legal agreements promote tenure security and transparency, minimise costs. Lease clauses cover: period of lease, permitted land use, rent, maintenance, approval of transfers, rights to mortgage the lease, etc.

LEASE AGREEMENT IN PNG

3.4 Dispute Resolution Process in Samoa

3.4 Dispute Resolution Process in Samoa

Disputes resolution and grievance redress mechanisms are fundamental to ensuring the HGI initiatives are sustainable, support certainty and finality and don’t result in long-running litigation.

Disputes resolution and grievance redress mechanisms are fundamental to ensuring the HGI initiatives are sustainable, support certainty and finality and don’t result in long-running litigation.

Lessons can be drawn from Samoa where a dispute resolution system has been set up with a specific Land and Titles Court.

Corporate Bodies

Samoa’s Constitution provides for a Land and Titles Court. Other laws preserve custom and traditional village level institutions in the government system.

The Land and Titles Court has exclusive jurisdiction on land claims and disputes, providing transparency.

Lessons

• Pre-emptively mitigating risk of disputes avoids possibility of long-running litigation.

• Clear and transparent processes are key, with clearly defined steps for escalation.

• Reform actions must adapt rather than replace custom, and must be consensual.

The Court applies Samoan custom, using six judges/assessors who are Matai. Decisions of the Court are binding.

Lessons can be drawn from Samoa where a dispute resolution system has been set up with a specific Land and Titles Court. SECTION 4.0 DISPUTE RESOLUTION PROCESS IN SAMOA

• Legal recognition of customary institutions and dispute resolution authorities can assist.

• Successful dispute resolution processes link closely with both accepted practice and equity.

Chapter 4. Introduction

Next Steps in Land Tenure Reform

The following outlines the next steps in addressing the challenges and options for land tenure and land administration for the Higher Ground Initiative, following the completion of this current phase of work. In order to transition the design and development process from one of analysis, and interpretation, to one of implementation, it will be necessary to work through the following process for decisionmaking and capacity-building. Land Equity International and the Design Team will work directly with the Government and vested stakeholders, in order to: establish a basis for allocating land/housing on Land Portion 230; grow administrative capacity in order to facilitate such a process; minimize risks social and environmental risks through the piloting of a community consultation process for the land use changes; and in future phases of this project, ultimately building an efficient and robust land records system for Nauru. Key responsibilities in these next steps include:

• Land Equity International: facilitates, prepares background research and information, develops options, drafts core documents

• HGI Steering Committee: core decision making, ensures Nauruan culture embedded throughout, champions, lead implementer

• Other stakeholders: Ministry representatives, community representatives, new bodies formed etc.: support efforts, critical review, implement

SECTION 4.0 CHAPTER 4 INTRODUCTION

1.

Establish mechanism, criteria

Plan for administrative needs

Plan for legislative requirements

Assess capacity to manage LP230 tenure process

Deliverables

Draft LP230 Allocation Plan

Draft National Land Policy Framework

Analysis of the Legal Framework for Land Tenure

Rapid studies on: (i) Options for transitioning land use, (ii) Addressing land fragmentation, (iii) Effective dispute resolution.

Deliverables

2.

Detail relevant business process flows

Plan for ongoing resourcing

Preliminary LIS scoping

3.

Develop stakeholder engagement plan

Identify pilot location

Conduct consultations

Report on Pilot

Continue digitization processes

4.

METROCOLOGY

Develop pilot land records system

Agree data standards, roles

Develop plan to fill in data gaps

SECTION 4.0 CHAPTER 4

Report addressing institutional and capacity needs, business processes review relevant to LP230 and anticipated HGI needs.

Deliverables

Staff safeguards socialization

Prepare TOR for future risk and safeguards work

Stakeholder engagement framework

Report on Community Consultation Pilot

Deliverables

TBD

Grow administrative capacity

(i) Safeguarding; and (ii) Piloting community consultation process for HGI land use changes

Build land records system (post-Phase II)

Establish a basis for allocating LP230 land/ housing

Consultation