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By Jane McAdam

In 1945, the small Banaban community from Ocean Island in present-day Kiribati was relocated to Rabi Island in Fiji.  The Banabans were granted considerable local autonomy within Fiji, as well as special rights of entry, residence and parliamentary representation in Kiribati.  This included the right to stand for Parliament in Kiribati, even though most Banabans are not citizens of that country. This unique constitutional arrangement provides a fascinating counterpoint to Australia’s current dual citizenship ‘crisis’ in federal Parliament.

Kiribati’s constitutional safeguards for the Banaban people are a product of complex and fraught history concerning the Banabans’ relocation to Fiji. The Banabans were the original inhabitants of Ocean Island (Banaba), a tiny island that is now part of Kiribati.  It was incorporated into colonial territory when the British discovered high-grade phosphate there in 1900, and by 1909, the mining company was agitating for the Banabans’ removal so that the phosphate resources could be exploited to the full. Notwithstanding concerns within the British government that the Banabans had a right to remain in their traditional homeland, imperial interests ultimately won out. Ocean Island’s extensive phosphate resources, which could produce high-quality fertilizers to stimulate agriculture and thus produce food for the Empire, took priority.

In 1913, a trust fund was established ‘for the general benefit of Ocean Island natives, always having in view the purchase of another island in the Gilbert Group and the ultimate transfer of the natives to that island.’ In 1942, the British authorities purchased the freehold title of Rabi Island in Fiji on the Banabans’ behalf, relocating them there in December 1945. While the move was ostensibly prompted by irretrievable damage to Ocean Island during Japanese occupation in WWII, it seems likely that the post-war circumstances provided the colonial authorities with a convenient excuse to relocate the population and mine the island completely.

A 1947 document, the Statement of Intentions, guaranteed the Banabans’ rights to their land on Ocean Island and their inalienable right to return there.  Thus, when the process of decolonization of present-day Kiribati began in the mid-1970s, the on-going legal status of the Banabans also came into sharp focus.  The Banabans’ own bids for independence intensified, and although unsuccessful, were highly relevant to the special provisions inserted into the Constitution of Kiribati to safeguard their rights of access, land and political representation in that country.  

The Kiribati Constitution provides for two elected parliamentary representatives to safeguard the Banabans’ interests.  These representatives do not have to be citizens of Kiribati.  One is the ‘elected member’ of the electoral district ‘comprising or including Banaba’, who may be either ‘a citizen of Kiribati or a Banaban’.  That person is elected by citizens of Kiribati or Banabans over the age of 18 residing within the electorate.

The other is the ‘nominated representative of the Banaban community’, selected by the Rabi Council in Fiji (who is presumably a resident of Rabi, although this is not expressly stipulated).  This person must be ‘Banaban’, defined as ‘the former indigenous inhabitants of Banaba and such other persons one of whose ancestors was born in Kiribati before 1900 as may now or hereafter be accepted as members of the Banaban community in accordance with custom’.  In practice, if there is any doubt as to a person’s Banaban status, the Rabi Council makes a ruling on it.  The High Court of Kiribati has jurisdiction over any disputes as to whether the nominated member has been validly declared, even though the selection is undertaken by the Rabi Council within Fiji.    

The two Banaban members have the right to veto proposed amendments to the Banaban constitutional safeguards in the Kiribati Constitution.  If the nominated member is not present at the time of voting on the second reading of the bill, then the bill’s consideration must be deferred.  If the nominated member votes against the bill at that later time, then the bill must not be passed.  In that sense, the nominated member (from Rabi) has special privileges not enjoyed by the elected member (from Ocean Island).

Given the Banaban right of veto, the process to amend or repeal the provisions concerning the Banabans is the most stringent of the whole Constitution.  This has caused some discord among the Kiribati MPs about Banaba’s ‘higher’ status in the Constitution, and according to some politicians there, the safeguards remain unpopular among the Kiribati population because they afford ‘special treatment’.  In interviews with government officials in Kiribati, one gets the sense that they are frustrated by their inability to progress certain initiatives on Ocean Island (such as rehabilitation of the land) because of the veto entrenched by the constitutional safeguards.  There are apparently also tensions with the small population residing on Banaba, who are wary of the model of ‘external’ governance from Rabi.  As a Kiribati government official explained, there were ‘lots of problems now’ because the Banabans on Rabi often had different views from those on Ocean Island.  The Rabi Council had prevented certain activities being undertaken on Ocean Island, despite the fact that the Banaban MP from Ocean Island had requested them.  

The Banaban case study is an example of innovative governance and citizenship arrangements constructed to protect a group’s rights in their old and new countries of residence. While Australia’s citizenship ‘crisis’ stems from a constitutional provision that is anachronistic to the country’s contemporary multicultural composition, it is worth pausing to contemplate just how diverse and encompassing different constitutional arrangements can be. 

Jane McAdam is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW. 

This is excerpted from a longer article: Jane McAdam, '"Under Two Jurisdictions": Immigration, Citizenship, and Self-Governance in Cross-Border Community Relocations' (2016) 34 Law and History Review 281-333.

The exhibition Project Banaba is on at Carriageworks in Sydney 18 Nov-17 Dec.

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.