Can I just say to the Acting P.M. Fiame Naomi Mata’afa that even though former HoS His Highness Tui-Atua Tupua has signed off on the law it does not mean the people of Samoa should stay quiet and not question its legitimacy and legality.
Samoan warriors like Fiu Mataese, Maua Faleauto and Iuni Sapolu of S.S.I.G. have long questioned and pointed out L.T.R.A. 2008 is unconstitutional and will alienate the customary land of the aiga potopoto.
I write this response to show how this L.T.R.A. 2008 legislation was not created in the best interest of our people but rather it was drawn up to satisfy the financial institutions that lend money to Samoa. The government and their supporters will say it was changed to enhance the social, cultural, economic and commercial development of Samoa. Sure! Yes maybe!!
The L.T.R.A. was endorsed by the former Attorney General to the former Head of State for assent in 2008. I might add this is the process critics claim is unconstitutional as there was never a referendum of electors according to a directive in Article 109 of our constitution.
However back in 2005 the Asian Development Bank (A.D.B.) provided technical assistance (T.A.) to the Samoan government to consider making economic use of customary land and one of the recommendation was the use of customary land lease as collateral for mortgages.
There is also high demand for customary lands from foreign investors and the ACL Act 1965 was seen as a hindrance to the development processes because in the Alienation of Customary Land Act 1965 the law recognizes that even if the land is registered in the matai’s name, the legal system recognizes all of the extended family as owners.
So dealing with foreign investors requires the whole extended family recorded and their consent to any deals. This according to A.D.B. Technical Assistance Report prolongs the approval process and discourage long-term land development.
ADB provided further TA to assist the HRPP government in -
(i) establishing the CLAC through the Customary Land Advisory Commission Act, 2013
(ii) setting up the Customary Land Leasing Section administered by MNRE and
(iii) amending the Alienation of Customary Land Act, 1965 to allow the mortgage of customary land leases.
So is A.D.B. into giving out advice on how to amend a country’s laws? Why can’t our people decide for ourselves how we want our customary lands to be used? Are we not intelligent enough for our P.M. and his H.R.P.P. government that they bypass our people’s opinion on this very important matter by not having a referendum?
The C.L.A.C. also established a legal working group (L.W.G.) to work closely with the Banking Association of Samoa to discuss further actions required to enable commercial banks to take advantage of this legal framework and accept customary land leases as collateral for mortgages.
In 2014. TA issued a paper for members of the Legal Working Group (L.W.G). The interesting part is how Article 102 was interpreted by the independent legal opinion obtained by the Attorney General and was endorsed by the TA:
Again if we look at Article 102 of the constitution.
102. No alienation of customary land - It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:
PROVIDED THAT an Act of Parliament may authorise:
(a) The granting of a lease or licence of any customary land or of any interest therein;
(b) The taking of any customary land or any interest therein for public purposes.
And this is how the independent legal opinion interpreted Article 102.
“In our view, the proper construction of proviso (a) to Article 102 of the Constitution does permit an Act of Parliament to authorise both:”
(a.1)” the granting of leases and licences of customary land in Samoa;” and
(a.2) “the granting of mortgages over (or other interests in) leasehold interests in customary land.”
How the hell did they come up with that? Did they just decide out of thin air that proviso (a) in Article 102 permits an act of parliament to grant mortgages? What a load of rubbish.
And then they also interpreted Section 4 Alienation of Customary Land Act 1965.
“The ACL Act (Alienation of Customary Land Act) empowers the Minister responsible for lands (Minister) to grant leases and licences of customary land. The ACL Act also sets out a reasonably detailed process for dealing with applications for leases and licences.”
“The ACL Act also empowers the Minister to grant an interest in a lease or licence of customary land, such as a mortgage of the lease or licence.”
Here is the actual section 4 of Alienation of Customary Land Act 1965.
4. Power to grant lease or licence – Subject to section 3, the Minister, if in his or her opinion the grant of a lease or licence of any customary land or any interest therein is in accordance with Samoan custom and usage, the desires and interests of the beneficial owners of the land or interest therein and the public interest, may grant a lease or licence of that customary land or interest therein as trustee for such owners:
(a) for an authorised purpose approved by the Minister;
Alienation of Customary Land Act 1965
(b) if the authorised purpose so approved is a hotel or industrial purpose, for a term not exceeding 30 years, with or without a right or rights of renewal for a term or terms not exceeding an additional 30 years in the aggregate, as may be approved by the Minister;
(c) if the authorised purpose so approved is not a hotel or industrial purpose, for a term not exceeding 20 years with or without a right or rights of renewal for a term or terms not exceeding an additional 20 years in the aggregate, as may be approved by the Minister;
(d) for such rent or other consideration payable to the Chief Executive Officer, reviewable or not, and if reviewable at such intervals or on such occasions and in such way, as may be approved by the Minister; and
(e) subject to such other covenants, conditions and stipulations as may be approved by the Minister,
PROVIDED THAT where the Minister is leasing or licensing customary land for forestry:
(i)the lease or licence shall conform, not only to this Act, but also to the Forests Act 1967; and
(ii)where the lessee or licensee is a person other than the Minister responsible for forestry, the Minister shall include such covenants, conditions and stipulations as to forestry as shall be requested by the Minister responsible for forestry.
Where in section 4 ACLA 1965 does it indicate or hint the minister can grant an interest in a lease or licence of customary land, such as a mortgage of the lease or licence? Again our laws is interpreted to what our government wants to hear and had it amended. Again what a load of kaka.
Another issue that was identified in LTRA 2008 was section 44 clashes with section 76 Property Law Act 1952 of Samoa and was rectified by amendment .
The L.T.R.A. 2008 section 44 states.
Lands under this Act: how mortgaged or encumbered-
(1) Whenever any land or estate or interest in land under the provisions of this Act is intended to be charged with, or made security for, the payment of a debt, the proprietor shall execute and cause to be registered a mortgage in the approved form.
(2) A mortgage under this Act has effect as a security but does not operate as a transfer of the land mortgaged.
Section 76 of the Property Law Act 1952 of Samoa which states.
76. Form of mortgage -
(1) Mortgages of land may be made in the form in the Third Schedule, or by an ordinary conveyance by way of mortgage.
(2) Every mortgage in the said form shall be deemed to be a conveyance of land by way of mortgage, and may be registered accordingly.
Therefore the registration of a mortgage under section 76(2) of the Property Law Act 1952 is in fact a registration of a conveyance and clearly amounts to an alienation and disposition of the secured land, until the re-conveyancing upon repayment of the loan.
The Property Law Act 1952 of Samoa was amended in section 5 of the 2015 ACT to amend the Land Titles Registration Act 2008. The original section 76 subclause (2) was omitted and replaced with the one below.
5. Consequential amendments -
(2) In the Property Law Act 1952, omit section 76(2) and substitute as follows:
“(2) A mortgage in that form has effect as a security but does not operate as a transfer of the land mortgage.”
Now that we have seen the amendments and repealing of our land laws to suit the H.R.P.P. government’s agendas. Let us have a look at how mortgages work and used as collateral.
A mortgage can be defined as a legal agreement by which a lender (bank, building society, etc.) lends money at interest in exchange for taking title of the mortgagor’s (landowner) property, with condition that the title be conveyed back upon payment of debt, so in other words also mean to convey a property to a lender as security on a loan.
In a leasehold mortgage, the mortgagor (tenant) takes out a mortgage using his interest under the lease as collateral. If the tenant doesn’t make mortgage repayments or defaults, the lender (bank, building society, etc.) will seize the tenant’s rights under the lease.
The original customary land lease agreement must allow tenant to use lease as collateral for mortgage. A leasehold mortgagee (lender) will also want the lease to provide the tenant with the ability to assign its leasehold interest freely. That way, should the leasehold mortgagee (lender) take possession of the mortgaged lease following default, it may market and sell the leasehold interest to recoup the unpaid amount of the loan.
Either way you are giving up your rights or interest in customary land depending on years of lease. Leasehold rights are generally not valuable enough to be effective collateral for smaller time frame leases, the leasehold mortgage is more common in longer lease period, for example 50 to 99 year lease agreement. I don’t know about you but that basically sound like the same thing as alienating your land.
And yes it is not just about our option whether to agree or not to lease family land, but more against registering it under one person (Saó ole aiga) and the mortgaging of customary land lease (mokesi).
There is widespread opposition to the Torrens system due to requirement that one person is registered as owner and many critics see LTRA as legislation that alienates the customary land of aiga potopoto and render it possible for conversion to freehold. And who is to say there won’t be anymore amendments and repealing in the near future (hrpp government love amending and repealing the Constitution).
So if the aiga potopoto allow their customary land lease to be mortgaged there should be very strict criteria (like mortgage only allowed for business expansion not start-up, other forms of collateral like freehold land, mortgage insurance, etc) to ensure the mortgaged lease does not fail and waste everyone’s time and money. This strict criteria should not affect the rent from lease. After all isn’t that the reason why it is leased out in the first place?
I pray our people will come to their senses and see right through our politicians agendas. And also to inform themselves and understand laws our government is pumping out. What is the impact these laws have on our lives and what are the consequences if we stay silent. God bless Samoa!!
“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” Patrick Henry.