INTRODUCTION
In 2010, the High Court of Solomon Islands was called on to review a decision by the Minister of Culture and Tourism to cancel a licence issued pursuant to the Protection of Wrecks and War Relics Act of 1980.Footnote 1 The licence allowed the licensee to recover and export the remains of a number of Japanese Zero fighter aircraft from Solomon Islands. While at first sight a relatively unexceptional case, it raised a number of issues concerning the rights of different stakeholders relating to the aircraft. Moreover, it raised a foundational question as to whether these relics might be considered cultural heritage, and if so, just whose heritage it was. Addressing these questions in Solomon Islands, as in many other Pacific island nations, is particularly difficult since its legal system is characterized by a plurality of sources of law.
A consideration of this case and the law that applies to this heritage serves to illustrate the difficulties that arise within pluralistic legal systems where the boundaries between different legal regimes are unclear. These difficulties are exacerbated by lack of clarity as to the aims of the legislation, arising from the fact that the basis upon which this heritage is protected by the legislation is unclear.
LEGAL PLURALISM
Legal pluralism is essentially the existence of two or more separate legal systems operating in the same social sphere.Footnote 2 Historically, legal pluralism in Solomon Islands stems from the imposition of the system of common law during the colonial era, in a country that already had its own customary law system. From a formal perspective, the source of legal pluralism in postindependence Solomon Islands is the Constitution, which is stated to be the supreme law.Footnote 3 The Constitution devolved the power to enact legislation to Parliament.Footnote 4 However, to fill the void until such time as new laws were enacted, legislation that had been introducedFootnote 5 from England was retained in force together with common law and “colonial” legislation,Footnote 6 as long as not excluded by any other law. While tolerated, rather than broadly recognized, during the colonial era, at independence, customary law was also recognized by the Constitution as a formal source of law.Footnote 7 The Constitution paints a picture of Solomon Islands' plural legal system in hierarchical terms, with state law at the apex, below which other systems of law are nested.Footnote 8 As Benton points out, such an approach to legal pluralism brings with it “a sense of inevitability about the dominance of state law.”Footnote 9
Emphasis on the hierarchical structure and the formal endorsement of customary law makes it easy to forget that it does not rely on constitutional recognition for its validity. It was in force prior to colonization and coexisted during the colonial period with the acquiescence of authorities.Footnote 10 Although colonial authorities in the Pacific did not practice indirect rule to the extent seen in the colonial regimes in Great Britain's African colonies,Footnote 11 most domestic disputes continued to be settled informally in the village. Colonial authorities would only interfere if expatriate settlers or a serious crime were involved, or the dispute was in some other way of concern to the colonial authorities.Footnote 12 In rural areas, customary law is often the only law villagers know of. In this context, the hierarchy of laws set out in the Constitution is an illusion.
Further, although customary law is formally recognized and given a position in the hierarchy of laws below the Constitution and legislation, this formal structure obscures the complexities of the relationship between state law and customary law. Critiques of the hierarchical approach to legal pluralism, particularly from anthropological literature, point out that, in practice, legal systems often overlap.Footnote 13 Legal concepts and practices, as well as the roles of the parties and decision makers, are not always clearly distinguishable. A prime example can be seen in the High Court case of Pusi v Leni,Footnote 14 where Muria CJ refused to accept that the Constitution would always have precedence over customary law, saying,
it is a fallacy to view a constitutional principle or a statutory principle as better than those principles contained in customary law. In my view, one is not better than the other. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for another.
Further, although in theory, the Constitution states that customary law is to prevail over English common law,Footnote 15 in practice this is rarely the case. This has allowed those schooled in the common law to avoid the application of customary law despite its formal status.Footnote 16
The complexities of resolving disputes in Solomon Islands are acute, particularly when the dispute involves the use of land or coastal waters. In such cases, the physical manifestations of the culture often plays a significant role in the customary regime, as cultural objects may be used to delineate customary boundaries or the division of land management functions between groups, or to limit access to certain places to specific peoples. Commonly, claiming management over land may require an ability to place cultural objects and cultural practices within that land area, which includes the location of secret sites, graves, and spiritual sites. With the pressures of population growth, sea-level rises, and the consequential food insecurity, cultural heritage is being manipulated by groups to extend their land claims. This means not only manipulation of their own cultural heritage, but also possible interference with the other group's cultural heritage. Emerging nontraditional uses of the land have also posed threats to cultural heritage. Logging in Solomon Island has had a dramatic effect in a number of areas and has caused damage to cultural heritage, not only directly to that contained on the land, but also through the disruption of the use of cultural sites, particularly those associated with secret practices when logging roads and operations pass close to these sites.
The resolution of land and land management disputes in a system characterized by legal pluralism is naturally fraught with difficulties. The introduction of international norms or the recognition of foreign norms based on private international rules in such a pluralistic legal system raises further complexities. These complexities are evident when considering the application of the variously conflicting norms to the significant number of objects and relics left in Solomon Islands at the end of World War II. Because these relics derived originally from a foreign source, they potentially involve the invasive introduction not only of the relics themselves but also the legal rights that may attach to them. A consideration of the approach taken to these relics acts as a prism through which the various conflicting norms may be separated and their relationships considered. More specifically, a consideration of a number of very specific relics, specifically, the remains of Japanese Zero fighter aircraft from the Island of Ballalae in the Western Province of Solomon Islands, illustrates these complexities.
THE CONFLICT
Solomon Islands were the scene of some of the most violent battles of World War II. Following invasion by the Japanese in 1941, the Allies launched the Guadalcanal Campaign in Solomon Islands to defend the Allied communication and supply lines.Footnote 17 The resulting conflict cost significant lives, especially for the Japanese, and estimated losses range as high as 22,000 Japanese deaths. About 15,000 fallen Japanese servicemen have been recovered and repatriated.Footnote 18 Apart from human remains, remnants of this campaign are littered throughout the islands, including wrecks of tanks, ships, and aircraft; guns and ammunition, some of which is unexploded; and a great variety of associated detritus, including such things as old Coca-Cola and beer bottles, which can be found for sale at roadside markets.Footnote 19 Of significance are the remains of Japanese aircraft on the Island of Ballalae.
Ballalae
On 3 November 1942 the Japanese Navy 18th Construction Battalion began construction of an airfield on Ballalae Island that spanned the length of the island. The island had been uninhabited, the locals believing it to be haunted, until purchased by an Englishman in 1901 to farm coconuts and produce copra. The family only left the island in 1942 shortly before the Japanese landing. The labor contingent to build the airfield consisted of Chinese and Solomon Island laborers and a contingent of 517 British Royal Artillery Regiment POWs who had surrendered in Singapore in February 1942. With very poor working conditions, many of the British POWs died during the construction. Once the airfield was operational in early 1943, it supported up to 96 aircraft. It was subjected to numerous Allied bombing raids, during which a number of POWs were killed. In March 1943, fearing an Allied landing, the Japanese killed the remaining POWs and buried them in mass graves. Once the Allies began driving the Japanese out of Solomon Islands, Ballalae was bypassed and only occupied in late 1945 by the Australian Army, who discovered the mass graves.Footnote 20 With attention focused on these atrocities and the repatriation of the remains, the airfield and remaining aircraft were simply left abandoned. The original English owners of the copra plantation on which the airfield stood did not return and declined to allow salvors onto the island to recover the World War II remains for scrap.Footnote 21 However, in 1969, at least four aircraft, a Val bomber and three Zero fighters, were recovered from Ballalae and taken to Port Moresby, Papua New Guinea.Footnote 22 The plantation owners had been unaware of the removal of these remains. Eventually, the owners donated the land to the Solomon Islands government. The concern with the activities of scrappers by the late 1970s led to the adoption of the Protection of Wrecks and War Relics Act in 1980. This did not necessarily prevent war relics being recovered and exported, and it has also been alleged that another Zero was recovered and exported to Bougainville in the late 1990s.Footnote 23
In 2003 further interest was focused on the remaining aircraft on Ballalae. Armed with a licence obtained in accordance with the Protection of Wrecks and War Relics Act of 1980, an Australian businessman, Craig Turner, set about recovering and exporting the wreckage of four aircraft.Footnote 24 This time, however, the people of Ballalae expressed concern over their removal, arguing not only that this affected future tourist potential, but also that it meant the removal of part of the history of the province and its people.Footnote 25 A claim from a person purporting to be one of the registered owners of the island, who sought an injunction to prevent the removal of the aircraft, complicated the issue. These events led eventually to the first High Court decision on the removal of war relics from Solomon Islands, and the application of the Protection of Wrecks and War Relics Act.
THE PROTECTION OF WRECKS AND WAR RELICS ACT
Defining Its Terms and Scope
The Protection of Wrecks and War Relics Act was designed “to secure the protection of wrecked vessels and aircraft and war relics lying in Solomon Islands from interference by unauthorized persons, to control the export of war relics, and for connected purposes.”Footnote 26
The long title of the act, “An Act to Secure the Protection of Wrecked Vessels and Aircraft and War Relics Lying in Solomon Islands from Interference by Unauthorised Persons, to Control the Export of War Relics, and for Connected Purposes,” identifies three groups of objects: vessels, aircraft, and war relics, while apparently limiting the control of exports only to the latter group. “War relics,” however, is a catch-all category, defined to include “any object or artefact brought into Solomon Islands by or for the use of any combatants in World War II.”Footnote 27 It therefore encompasses aircraft and vessels, and all the appurtenances that attached to these, and all other military hardware, such as tanks, field guns, helmets, personal firearms, munitions, and the like, as well as anything that would have been used or brought into Solomon Islands for the use of any combatants, including medical material, cooking facilities and utensils, and so forth. It thus covers a very wide array of objects. The intent of the act is not, however, to provide protection for each individual object such as a rifle, helmet, or tank, though it might be used to protect an individual aircraft or wrecked vessel. As such, the act uses the term “war relic,” sometimes rather confusingly, in conjunction with aircraft or wrecked vessels, even though “war relic” includes aircraft and wrecked vessels.Footnote 28 To exacerbate the rather poor use of these terms, a fourth term is used, in the title of the act, in almost of all of its headings, and in the substantive sections of act: “wreck.” The term is not defined, but is used in most cases in association with aircraft and vessels.Footnote 29 In this sense, though, it might suggest that only those that have been wrecked, rather than, for example, those merely abandoned, are included. While the problems that might arise from this narrow definition are cured by the scope of the term “war relic,” the use of the term “wreck” in almost all the headings suggests, erroneously, that the sections that follow deal only with this category of war relics. This confusion is exacerbated by the very poor use of the term “site.”
Essentially the act seeks to protect a “site,” that is, a place that “is, or may prove to be, the site of a vessel or aircraft lying wrecked or is a site upon which lies, or may prove to lie, a substantial quantity of war relics.”Footnote 30 The intent is then to allow for the site to be protected by designating an area around the site as a “restricted area.”Footnote 31 Unfortunately, the act defines the term “site” to mean “the site identified by an order made under section 3.” While this order does require that the site be identified,Footnote 32 it relates more specifically to the designation of the restricted area, not the site as such.Footnote 33 “Restricted area” is defined as “an area so designated under section 3.” Rather than defining “site” with reference to the order, it ought really to have simply meant the place where the aircraft, vessel or war relics might be found. After all, the site itself has no legal meaning in terms of an area subject to legal regulation; it is the restricted area that does. Indeed, this simple meaning has to be used to give the section any meaning. That is, to be a “site” as defined in the act, it must be identified as such in the order, but to be identified in the order, it must first be the site of an aircraft, vessel, or “a substantial quantity” of war relics.
This identification of a site requires, other than in the case of an aircraft or vessel, that it be a site “upon which lies, or may prove to lie, a substantial quantity of war relics.”Footnote 34 It does not apply to individual war relics, say, a helmet, a rifle, or a tank found in isolation. However, the act does not explain just when the threshold of a “substantial quantity” of war relics is reached. This, however, has been rendered moot by the manner in which designation has taken place.
The requirement that the site be identified in the order was to give the restricted area a focal point, or center of gravity, surrounding which would be a type of buffer zone, which together form a “restricted area.” The distance between the site and the edge of the restricted zone was whatever distance the Minister “considers appropriate to ensure protection for the wreck or the war relics.”Footnote 35 This mechanism was adopted in the first designation in 1981 in Tenaru, Guadalcanal, with the designation of an area of a radius of 1500 m from a specific map point reference in latitude and longitude.Footnote 36 The second designation, in 1990, however, made three provinces into a restricted area. No site was indicated and no distance was measured from that site, but rather it includes the entire provinces of Guadalcanal, Central Islands, and Temotu.Footnote 37 This was followed by the designation of Western Province in 1991.Footnote 38 Certainly, the manner of designating these areas is not consistent with the intent of the act. This confusion in designation was further evident in 2007 when the Shortland Islands were designated as a restricted area, since these islands were part of the Western Province and were therefore already subject to the 1991 order.Footnote 39
Offences
The act makes it an offence to tamper with, damage, or remove any part of a wreck or war relics; or to carry out excavation, diving, or salvage operations directed at any wreck or war relic, including allowing anything to fall on the wreck site, or to damage any part of the wreck or war relic, in a restricted area without a licence granted by the Minister.Footnote 40 A person also commits an offence if he or she causes or permits any of those things to be done by others in a restricted area, otherwise than under the authority of such a licence. The penalty under this act is a fine of up to 2000 Solomon Island dollarsFootnote 41 or six months' imprisonment, or both.Footnote 42 It is also an offence to obstruct a person from undertaking activities covered by the licence.Footnote 43
The act excludes a number of activities from being offences. These include actions taken for the sole purpose of dealing with an emergency or provided for in other legislation. Importantly, it also provides an exception related to actions taken “in exercise of rights which exist in law in or over land or waters.”Footnote 44 Exactly what rights these might entail is not addressed in the act, and this raises difficult questions about Solomon Islands' legally pluralistic regime. In particular, it is not clear whether “law” includes customary law, or whether it is restricted to state law. Given the constitutional recognition of customary law, it would appear to be included.
The License
The licence granted by the Minister, which must be in writing, is only to be granted, in the first instance, to persons who satisfy the Minister that they are competent, and properly equipped, to carry out excavation or salvage operations in a manner appropriate to the historical importance of any wreck or war relics.Footnote 45 Since the threshold for the application of this section is the historical significance of the war relic, it is subject to considerable interpretational difficulties, and again raises the question as to how Solomon Islands' government views these remains.
A licence may also be granted to a second category of person; that is, to a person who appears to the Minister to “have any other legitimate reason for doing in the area that which can only be done under the authority of a licence.”Footnote 46 Since this is the basis for granting the licence, it appears that the threshold is merely that the Minister believes that the person has some legitimate reasons for tampering, damaging, removing, or excavating any war relic site. This is certainly a very wide power, and one that does not appear to necessarily take into account the historical importance of the war relics.
The licence may be subject to conditions or restrictions, and it may be varied or revoked by the Minister at any time after giving not less than one week's notice to the licensee.Footnote 47 Anything done contrary to any condition or restriction of a licence is to be treated as done otherwise than under the authority of the licence.Footnote 48 Importantly, a condition of the licence may include “payments to be made to persons claiming rights in or over the land or waters designated as a restricted area.”Footnote 49 This raises difficult questions as to the nature of these rights and their origin in a legally pluralistic state.
Dangerous War Relics
Some of the war relics that still lie scattered about Solomon Islands are potentially dangerous. These include munitions, gas canisters, and the like. Whether the dangerous war relics are of historical interest or not, the act provides for the same designation process as that applied to historic war relics when the relics pose a “potential danger to life or property.”Footnote 50 It does not provide any mechanism for dealing with a dangerous war relic other than providing for the creation of a prohibited area around the war relic. Unlike the case of a restricted area, no licence requirements are set out for a prohibited area in the act itself. However, in making it an offence to enter a prohibited area (whether on land or under water), the act creates an exception, being entry with authority in writing from the Minister. This effectively gives the Minister considerable discretion in dealing with these dangerous war relics.
Export of War Relics
The act provides that a “person commits an offence if he exports or attempts or causes to be exported from Solomon Islands any wrecked vessel, aircraft or war relic or any part thereof or article formerly lying therein, whether or not the vessel or aircraft concerned is one upon which salvage operations have been carried out pursuant to a licence granted under section 4(2), without having first obtained the consent of the Minister to the export thereof.”Footnote 51 The Minister may, however, by order exempt any class of war relic from this restriction. This limitation of export of war relics, mentioned in the long title of the act, together with the licence requirements, lies at the heart of this protective regime. The act itself, however, does little to address the export regime itself, leaving it entirely to the discretion of the Minister.
The Protective Regime
The act merely sets up a licensing regime for interference with war relics and a general export limitation. It says very little about the nature of these war relics, and leaves considerable discretion to the Minister in determining whether the relics are “of importance” (or dangerous), and whether a licence or export permit is to be granted. Whole swathes of Solomon Islands have been designated as restricted areas,Footnote 52 subjecting these war relics to considerable Ministerial discretion. This is, however, tempered by the concessions granted to “persons claiming rights in or over land or waters.” Not only are these persons to be consulted before any designation of a restricted area is made,Footnote 53 but any interference with a war relic in the exercise of such rights does not constitute an offence. Moreover, on granting a licence, a condition may include payments to “persons claiming rights in or over the land or waters designated as a restricted area.”Footnote 54 This gives rise to considerable uncertainty as to the nature of the rights that exists, and to rights the act is capable of creating.
Few instances of the act's application can be found, other than the broad designations made in 1990 and 1991. This, however, changed in 2011 when the High Court of Solomon Islands had to address these issues in relation to the cancelling of an existing licence to excavate and export the remains of a number of Japanese Zero fighter aircraft from Ballalae. The case, while of somewhat limited formal impact, raises several issues about the difficult interaction of norms in a legally pluralistic society and acts as a prism through which the nature of these war relics might be considered.
HIGH COURT DECISION
The case, Alpine Concrete Constructions Pty Ltd v Attorney General,Footnote 55 was essentially an application for judicial review of the decision of the Minister of Culture and Tourism to revoke a licence issued in terms of the Protection of Wrecks and War Relics Act of 1980. Issued in 2003, the licence was described as an “exclusive five-year recovery and removal licence” that allowed specifically for the recovery and removal of World War II aircraft remains from Ballalae in the Shortland Islands.Footnote 56 In 2007, a second licence was issued by a new Minister of Culture and Tourism. The intention was for the second five-year licence to replace the existing licence. It appears that during this time, the remains of at least two Japanese Zero aircraft were exported to Australia.Footnote 57 In 2008, yet another (third) Minister of Culture and Tourism entered into negotiations with the licensee, but subsequently, by legal notice, cancelled the licence in early 2008.Footnote 58
The applicant then applied to the High Court for a review of this decision. The review turned on technicalities as to when the licence could be revoked. Section 4(2) quite clearly provided for a licence to be revoked, with the only stipulation being that no less than one week's notice be given to the licensee. While the process of cancelling the licence may have been somewhat unclear, given that the act did not specify the manner in which cancellation should be made, there was nevertheless sufficient evidence to indicate not only that the licence had been cancelled but also that the licensee knew this.Footnote 59 The licence was therefore validly cancelled.
In considering the scope of the licence, and the decision by the Minister, an issue arose in relation to ownership of World War II relics. The licensee claimed that ownership of war relics in Solomon Islands was vested in the claimant through the issuance of the licence.Footnote 60 The licence had allowed the licensee to “recover and export World War II aircraft and parts thereof, within the boarders [sic] of the Solomon Islands with absolute ownership and free clear title, absolutely free from any encumbrances.”Footnote 61 It is not clear whether the licensee was asserting that the valid licence had vested ownership in the licensee and that its cancellation could not divest him of ownership, since the application before the court merely addressed the validity of the cancellation of the licence. Certainly, Chetwynd LJ, having found that the licence had validly been cancelled, did not consider it necessary to address the question of ownership to resolve the case. Nevertheless, the judge observed, obiter, that the act itself did not address questions of ownership and certainly did not vest ownership in the Minister or Crown. The licence granted to the claimant could thus not vest ownership in the claimant.Footnote 62 Chetwynd LJ, rather than leaving the ownership issue at that point, perhaps unnecessarily then declared that “the landowners, both customary and registered, ‘own’ the war relics found on their land subject of course to the provisions of the act.”Footnote 63 It is not clear what exactly is meant here by “owns,” as Chetwynd LJ acknowledged. The act itself refers to the role played by landowners on three occasions. First, persons “claiming rights in or over land or waters” are to be consulted before any designation of a restricted area is made.Footnote 64 Second, in relation of the offence relating to interfering in any way with war relics without a licence, an exception is made when these actions were undertaken “in exercise of rights which exist in law in or over land or waters.”Footnote 65 Third, a condition of a licence may include payments to “persons claiming rights in or over the land or waters designated as a restricted area.” It is not clear exactly what rights these may refer to, but Chetwynd LJ at least suggested that these may, in some way, relate to ownership of the land or waters and, as a consequence, possibly ownership the war relics. This gives rise to considerable uncertainty as to the nature of the rights that exist in relation to the war relics, the rights the act is capable of creating, and the significant problem of resolving a conflict of rights in a legal system with a plurality of laws.
CUSTOMARY LAND OWNERSHIP
About 83% of the land in Solomon Islands is still customary. The Land and Titles Act,Footnote 66 originally enacted in 1968, acknowledges that customary land is governed by customary law.Footnote 67 However, problems arise from the fact that in Solomon Islands today, customary usage is not a homogeneous body of accepted body of rules or practices. Customary law is, by its very nature, flexible, and there are particular variations in customary land tenure. Further, the terms customary ownership and landowners are often employed in written law. The term ownership has a very specific meaning under the common law, and it does not allow for the very different approach to interests in land existing under customary law. It usually refers to a fee simple, involving absolute rights relative to all other rights.
Although the rules governing customary land usage differ from place to place in Solomon Islands, there are similarities in the way that land is regarded, including its spiritual significance, and the use of geographical features and physical objects to identify boundaries. The most common form of customary land tenureFootnote 68 is often said to be group or communal ownershipFootnote 69 founded on blood relationships,Footnote 70 residence, and contribution to village enterprise. Further, interests in land are multitextured, with different groups and individuals having different rights with respect of the same area of land. Courts in Solomon Islands have struggled to deal with this, and the complexities of the situation have been glossed over by use of the terms primary rights and secondary rights to refer to different rights in land.Footnote 71 The inadequacy of the terms primary and secondary to capture the customary relationships involved were recognized by the High Court of Solomon Islands in Kofana v Aute'e.Footnote 72 However, in that case, Palmer J took a pragmatic approach toward these terms, stating that provided parties explained exactly what rights they were referring to in a particular case, the labeling of those terms was academic.
Given the misunderstandings arising from the term ownership and the possibility of multilayered interests, it may be more accurate to refer to rights to use or, as set out variously in the Protection of Wrecks and War Relics Act, “rights in or over land or waters,” “exercising rights in or over land or waters,” or to claims of “rights in or over land or waters,” rather than to ownership; but even these do not give the full picture.
Not only is the nature of the customary land tenure uncertain, but its application to specific lands in also uncertain. This arose in particular in relation to the continued uncertainty as to who owns the land below the high water mark. This has relevance to the ownership or control of significant quantities of World War II relics that lie on these lands, including, for example, the remains of vessels lying close to the shore, such as the Hirokawa Maru and Kinugawa Maru Footnote 73 off Guadalcanal, as well as a number of aircraft remains that can be found in the intertidal zone.
The Land and Titles Act Footnote 74 does not expressly state who owns the land below high water mark. This has given rise to problems, as members of the customary community almost invariably regard the foreshore, reefs, and seabed as part of customary land,Footnote 75 whereas the common law presumes that the area below high water mark belongs to the Crown.Footnote 76 The position is complicated by the fact that, as with other types of ownership of customary land, ownership of foreshore and reefs may be multilayered, with a number of interests coexisting. Unfortunately, the two most recent High Court cases to consider this issue are in conflict. In Allardyce v Laore,Footnote 77 Ward CJ held that the issue was governed by the common law, and this meant that “land covered by water” did not include the seabed and therefore the seabed could not be part of native customary land. However, he did recognize that “some customary rights can exist over the sea and such customary rights can supplant the common law position.”Footnote 78
In the more recent case of Combined Fera Group v The Attorney General,Footnote 79 Palmer J took a more liberal approach. His Lordship traced the evolution of the definition of land through the Lands and Titles legislation. In an early version of the act, “land” was defined as including areas covered by water but not the sea at mean low water. In 1964, this definition was amended, and the reference to the land covered by sea at mean low water was omitted. On this basis, Palmer J reasoned that land covered by water was now capable of including the seabed, and could vest in the Commissioner of Lands as public land. His Lordship considered that this raised a strong presumption in favor of the view that the seabed could also become part of customary land. The court held that the “cut off” date for establishing a claim of current customary usage was 1 January 1969, when the current Land and Titles Act came into effect. If land that formed part of the seabed was customary land as at that date, then it could not have vested in the Commissioner of Lands and was therefore subject to that customary law. This decision was followed recently by the Magistrates Court in a land acquisition appeal.Footnote 80 It was held that “the evidence of customary practices and continuous use or occupation established the right to permanent communal [right of use] and right of ownership on the land below high water mark.”Footnote 81
While as yet undetermined, the case law suggests that the customary land owners of the intertidal zone might acquire rights of some sort, possibly even ownership, of the remains of aircraft and vessels found therein. Though the remains would clearly be subject to the Protection of Wrecks and War Relics Act, these customary owners are those to which the act applies. Under the act, their activities in relation to these wrecks would be exempt from constituting an offence, if they were undertaken in the exercise of rights that exist in law in or over land or waters.
OWNERSHIP OF WORLD WAR II WAR RELICS IN SOLOMON ISLANDS
It appears from the act and from the case that customary landowners may be able to deal with war relics in a manner that reflects, in some way, ownership. This does, however, appear to conflict with the manner in which the licence, at least in this case, was issued and the view taken by the central government. Certainly, the view taken by the Minister of Culture and Tourism in 2003 appeared to be that ownership of the war relics vested in the state and that the Minister had the discretion of vesting this ownership in the licensee. This conflict of laws bedevils systems with a pluralism of laws. This is exacerbated when these also appear to conflict with a third system of laws: international law or the recognition, though private international law rules, of ownership rights derived from a foreign legal system. In this instance, the stance taken on ownership of World War II relics in Solomon Islands is likely to conflict with the view of other nation states, such as Japan, United States, Australia, and New Zealand.Footnote 82
The issue of continued state ownership of World War II relics has arisen in particular in relation to wrecked vessels. Many of these not only contain munitions and other dangerous artefacts, but also in many cases are the last resting place of soldiers and sailors. Obviously, the relevant belligerent state owned the material at the time of the conflict, and as such, the continued question of ownership is dependent on the possibility of the extinction of that ownership through abandonment.
Determining when a state has abandoned a warship is problematic, as there appears to be no conventional or customary international law governing the question, and state practice in this regard is not consistent.Footnote 83 Two theories have been proposed. The first requires the flag state to expressly abandon title, while the second provides that abandonment may be implied by the facts, including the passage of time. While there is, in the United States, for example, a clear modern preference for the application of the express theory of abandonment, past U.S. practice has been equivocal.Footnote 84 For example, while the text and legislative history of the U.S. Abandoned Shipwreck Act of 1987 clearly evinces an intention to apply the express abandonment theory to U.S. vessels, it does not do so for foreign vessels. This is also reflected in U.S. admiralty court decisions that have found that state vessels of Spain and the United Kingdom found in U.S. waters had been implied to be abandoned. Similarly, with regard to U.S. vessels, little consistency can be found in U.S. admiralty court decisions, with implied abandonment found in the case of both the USS Texas and USS Massachusetts,Footnote 85 while an express abandonment was required in the case of the CSS Alabama.Footnote 86 The most recent decisions in U.S. jurisprudence have coincided with the development of an express theory of abandonment. In Sea Hunt, Inc. v Unidentified Shipwrecked Vessel or Vessels,Footnote 87 the court was required to determine whether Spain had abandoned title to the wrecks of the La Galga and Juno. While many Spanish vessels have been the subject of litigation in the United States, Spain had never made any claim of ownership in the past.Footnote 88 Spain's appearance in the litigation to claim ownership was pivotal in the determination of the appropriate test of abandonment. The Court of Appeals referred to the decision in Columbus-America Discovery Group v Atlantic Mutual Ins Co.,Footnote 89 in which it had been held that although abandonment could be inferred in the case of “long lost” shipwrecks such an inference would not be sustained where a previous owner came forward and asserted a proprietary interest. Although this case concerned the wreck of a private merchant vessel, the court in the Sea Hunt case relied on this precedent to assert that the appearance of Spain in claiming ownership required the application of the express abandonment theory. This theory appears to have been accepted in the most recent U.S. decision on sunken warships, handed down in 2011. The issue before the court was whether Spain was entitled to the benefits of the principle of sovereign immunity in relation to the claim by salvors for a salvage reward for the discovery and recovery of parts of the Nuestra Senora de las Mercedes y las Animas, a Spanish frigate that sank in combat in 1804, carrying a substantial amount of silver on board.Footnote 90 In finding that Spain was entitled to such immunity, the court accepted, without the matter being raised, that Spain continued to own the vessel.
While U.S. courts have grappled with the problem of abandonment of warships, few other states have had cause to do so. In the limited cases that have arisen, little consistency can be ascertained.Footnote 91 Few cases have reached national courts, and in most cases, the issue has been resolved through bilateral agreements between the claimant flag state and the state in whose waters the wreck was found.Footnote 92 In some cases, the agreement does not necessary recognize the claim of ownership of the flag state at all, and the agreements simply proceed on the basis that the states will cooperate in the recovery of the vessel and in some way share the proceeds or artefacts recovered.Footnote 93
Nevertheless, states have increasingly been more vocal in expressing the application of an express theory of abandonment. The U.S. Policy for the Protection of Sunken Warships in 2001 declares:
United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred in the manner Congress authorized or directed. The United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State. Further, the United States recognizes that title to a United States or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea.Footnote 94
In relation to the many Japanese wrecks littering the Pacific, including, in particular, Solomon Islands, the Japanese government has declared:
According to international law, sunken State vessels, such as warships and vessels on government service, regardless of location or of the time elapsed remain the property of the State owning them at the time of their sinking unless it explicitly and formally relinquishes its ownership. Such sunken vessels should be respected as maritime graves. They should not be salvaged without the express consent of the Japanese Government.Footnote 95
Germany, Russia, Spain, and the United Kingdom have all expressed similar views.Footnote 96 While there is therefore evidence that states require the application of an express abandonment theory, there is no clear indication that customary international law endorses this theory and certainly no conventional international law that does so. A claim of state ownership to these relics by Solomon Islands may conflict with emerging international law. It is not clear, however, that the government of Solomon Islands has made such a claim. Certainly the act itself says nothing about ownership of these relics.Footnote 97 Nevertheless, the actions of the Minister of Culture and Tourism in 2003 hinted at such a claim, while the obiter dicta of Chetwynd LJ suggest that title may vest in landowners. In conjunction with the recent decisions on the High Court on ownership of the intertidal zone, this suggests a possible conflict between claims made by Solomon Islands' government, that of the customary land owners, and possibly that of the original flag state. Such a conflict would make it difficult to manage the heritage values of a wreck or aircraft remains in the intertidal zone.Footnote 98
CULTURAL HERITAGE VALUES
The question of who might own these war relics is distinct from the question of whose heritage this is. The act itself requires the Minister to take into account the “importance” of the war relics when determining what areas should be designated as restricted areas.Footnote 99 This section does not qualify the nature of this importance, and it may, for example, be as much about economic importance as cultural importance. The “historical importance” of the war relic only arises in relation to the determination of who the Minister might consider a “qualified person” for the purposes of issuing a licence.Footnote 100 Given that this is only one of two possible categories of person considered appropriate to have a licence, and that the other's interest is merely that which the Minister in his discretion considers appropriate,Footnote 101 the historical importance of the war relics is a rather minor consideration in this regulatory regime.
Nevertheless, it may have an important role to play if these relics are considered as cultural heritage to Solomon Islanders. With so many World War II relics in Solomon Islands, both on land and at sea, it may be difficult to argue that all of them should be protected and preserved as cultural heritage, particularly when some may pose a threat to the environment and Solomon Islanders.Footnote 102 Unexploded ordinance, gas canisters, and leaking bunkers on sunken warships pose significant threats and may require removal.Footnote 103 The United States appears to have undertaken some operations to remove ordinance and gas canisters, but it is unclear whether this will necessarily be guaranteed in all cases.
Other remains may, however, represent the conflict or a specific event during the conflict, or may indeed continue to be a grave to many of those who died in the conflict; particularly the case of sunken warships. Whether the Solomon Islanders considers these to be part of their heritage, however, is not clear. The opposition to the removal of the Japanese aircraft from Ballalae, for example, was expressed in terms of both heritage value and potential tourist income. It is difficult from this instance to divorce the two interests, particularly since they may coexist. The attitude to this heritage may also differ between parts of Solomon Islands and impacts on the protective regime that might be implemented. From the central government's perspective, protecting these relics is not necessarily a reflection of these as the heritage of Solomon Islands. Their protection in situ may serve to promote tourism, and when exported, they can generate export revenue. This uncertainty as to the cultural value of these objects naturally affects how it is viewed, managed, and protected by different stakeholders in the pluralistic legal framework. In some respects, the stand taken by the various Ministers of Culture and TourismFootnote 104 suggests that they viewed the Protection of Wreck and War Relics Act as somehow superior to, and overriding, any customary law that might apply to World War II heritage situated on certain lands.
CONCLUSION
With World War II remains having lain in various quantities throughout Solomon Islands for over 65 years, their place in the cultural fabric of the islands, and to the Islanders, is both unclear and constantly evolving at different rates in different places. So too is the relationship of these relics to the land and land management claims. Given the uncertainty as to these claims, and the relationship between the customary law and that of the legislation, providing a rigorous protective regime for cultural heritage is problematic. This is especially so when foreign norms are introduced, either through international conventions or private international rules. The former, in particular, is problematic when Pacific island states like Solomon Islands consider the various UNESCO conventionsFootnote 105 designed to protect cultural heritage. Their adoption and implementation pose significant challenges for developing states with pluralistic legal systems.
