In response to lawyer Sala’s views about customary land

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Dear Editor,

I write to respond to Salā Josephine’s views published in the Samoa Observer, August 27, 2017, by Sarona Puni Saifaleupolu. 

Salā: The lease of customary lands for economic development can help address hardship, poverty and high unemployment rate.  

Sarona: This is not true. This same excuse has been used by the H.R.P.P government with the help from the World Bank, ADB, Australia and NZ for quite a long time; and here again, Salā continues to promote it. The leasing of customary lands will never solve poverty, it is never part of a solution to eradicate poverty, rather it will aggravate it. One only needs to look at the situation of some current customary land leases. The landscapes in some of these customary land leases are really degraded and some components of the biodiversity and ecosystems are, to large extent, destroyed. May be Salā and her bosses in the H.R.P.P government may like to take a fact finding mission to the Virgin Cove in Utumalama, Saanapu, and maybe they will understand what I am talking about. And perhaps, she may think twice about making statements that are not true. Despite revenue increase from customary land leases as per MNRE/CLAC statement published in a previous Samoa Observer edition, that increase does not constitute a percentage increase in family income, rather it is government commission from leased customary lands. In other words the government is exploiting the families when they promote the leasing of customary lands, in particular, those with the most pristine qualities, like those alluded to by Salā (untouched coastal lands with good beach fronts and clear blue lagoons – just like Utumalama before it was leased out to a foreign investor).       

 

Salā: This is the opinion of senior lawyer, Salā Josephine Stowers Fiu, who gave her legal perspective on the issue last week. The former Ministry of Natural Resources and Environment A.C.E.O of the Legal Division was among speakers at the National Focus Group Dialogue hosted by the Samoa Umbrella for Non-Governmental Organization. Speaking to the Samoa Observer, Sa said the lack of understanding about the Constitution has played a big role in the confusion about the lease of customary lands. To highlight her point in terms of using customary land for development, Salā pointed to Fiji. “The majority of their customary land are being used for business developments. They have set up a very good system for promoting the wider use of their lands,” she said. 

Sarona: Yes indeed, but this a very superficial view without a solid foundation. Salā has deliberately avoided mentioning that the same land issue was amongst the key causes for all the four coups in Fiji. Hence, this is a pitiable way to promote their cause because without reliable data, Salā’s claims cannot be substantiated. I do not know anything about legal systems but I always think that those who understand and practise law must do their research well and extract/present the most accurate information, before making a statement or a claim. I have accidently come across some recent researches in customary land leases in Fiji (Dodd M.J.K. Reform of Leasing Regimes for Customary Land in Fiji 2012, Fonmanu K.R., Ting L. & Williamson I.P.  Dispute Resolution For Customary Lands: Some Lessons From Fiji; Naidu V. & Reddy M. Na ghar ke na ghat ke; ALTA and expiring land leases:Fijian farmers’ perceptions of their future (Centre for Development Studies, University of the South Pacific, Suva, 2002; John Crosetto “The Heart of Fiji’s Land Tenure Conflict: The Law of Tradition and Vakavanua, the Customary “Way of the Land”, 2005.,14 Pacific Rim Law & Policy Journal  71; and some more); and the picture these reports paint is quite opposite to that presented by Salā. 

 

Salā: Salā is adamant the Constitution does not present any loopholes when it comes to customary land leases. 

Sarona: This is great to know; now Salā has provided reassurance to all Samoans that the Constitution of the Independent State of Samoa is totally loophole free with regards to customary land leases. Interestingly, the Samoan PM, during some of his press conferences, said the same thing. Yet, I fail to find comfort in this assurance simply because, just three years after Samoa became independent in 1962, the government passed a legislation called “The Alienation of Customary Lands Act 1965”, that allows the leasing of customary lands. So leasing of customary lands is not new because it was allowed under this Act. But it is puzzling, especially to a non-legal person like me, that the Constitution does not allow alienation of customary lands, under article 102, yet the legislation that allows the leasing of customary lands is called “The Alienation of Customary Lands Act 1965”. The point is, although the Act itself does not alienate customary lands, but the title is quite confusing. It is The Alienation of Customary Lands!! 

Secondly, the phrase “customary land lease interest” appears in Article 102 of the Constitution and it also appears in the Alienation of Customary Land Act 1965. This is the very same “customary land lease interest” which although has never been properly defined by Salā or the government, in according to LTRA, it is mortgageable. Well, so much for Salā’s loophole-free Constitution re customary land leases.This is indeed, the heart of the 4 matai’s complaint, that the Constitution has been breached by the LTRA, because the inalienability status of customary lands provided under Article 102 of the Constitution is now subtly and surreptitiously allowed under the LTRA. How? Very simple. The leasee is now allowed under the LTRA to use the investment on the leased customary land to secure loans from the bank. This looks ok but if the investment fails and the loan defaults, the bank takes the investment with it of course, the leased customary land and it will take decades and probably centuries for the customary lands to be returned to customary owners.  Fiu, Leifi, Olepalemia and Wendy have covered this several times already, so I will stop here but I just want to reemphasise my two scents piece, that the Samoan Constitution is definitely not loophole free in regards to customary land leases.

 

 

 

Salā: “The Constitution is clear, there are three types of land, Customary, freehold and public. The customary land lease is under Article 1 and 2 of the Constitution, which protects the rights of the Samoan people to their customary lands. 

Sarona: That is fine, but the leasing procedure in the Alienation of Customary Land Act 1965 as well as the LTRA does not really provide any protection of the Samoan people at all. Rather, these acts are taking away the rights of the customary land owners, since the minister of the MNRE signs on behalf of the customary land owners. 

Salā: “This is the only article of the Constitution that states, it cannot be removed or changed by the 2/3 majority of parliament. It has to go out to a public referendum for public vote during a general election. “Only then that part of the Constitution can be changed, otherwise our rights are protected under the law. “The Constitution is a strong provision. It’s not saying that customary land can be purchased because it cannot be sold, it’s prohibited under article one and two. “It’s the only Constitution in the Pacific that has that provision. “That really goes to show the positive foresight of our forefathers, to ensure whatever happens in the future, customary lands remain as costmary lands and the rights of the family to the land are strongly entrenched in the Constitution.”

Sarona: Good on you Salā. It is noble of you to remind the Samoans that the framers of the Constitution had positive foresight to ensure that their rights to customary lands are safely guarded under the Constitution. Many Samoans are on the same page, even the devil believes that too. Anyway, I just remember that now the LTRA has been passed, but it is a highway to hell because it allows the alienation of customary lands, and yet no plebiscite was ever undertaken. So irrespective of all the positives it is intended to provide, the LTRA is not legal. So with gratitude, I wish to thank you for pointing that out, as it gives us legal basis to condemn you.   

Salā: Salā said people are becoming more aware of their rights. “And those rights are fully supported under the amendments, like the right to reject a mortgage over the lease; the right to terminate the lease if you find the lease rent in arrears.” “You also have the right to disallow an assignment of lease; these new protections that are coming in through is to further support the rights of our people.

Sarona: Thanks again Salā. This sounds very legally comforting. But I am frankly surprised with you, as a senior lawyer with all the experience in land laws, you left out the important point that the Minister of the MNRE still has to sign on behalf of the customary land owners. If that condition has been annulled from the associated acts, then I will gladly applaud you because then and only then will the customary land owners have complete control over their customary land rights. 

Salā: “Sometime our people want to be part of the legal execution of the lease. We can actually allow that under the new amendments; because under the old procedures the Minister is emphasized as the trustee of the lease on behalf of the Aiga. “Now a family may say their Chief should be the other co-signature of the lease…. , the fact that they are wanting to be a part in the legal process it’s a good step ahead to be confident that their rights are being recognized and that needs to be considered by the government. 

Sarona: This is what I am talking about above. The Minister of the MNRE is still signing on behalf of the customary land owners. Let me just ask you Salā, why were the amendments made? Did you or the MNRE dream them up? Or was this a direct response to the 4 matai’s complaint? Anyway, I still see no good reason why in the amendments, does the Minister have to co-sign with a representative of the customary land owners during the leasing of customary lands. What is the ratio in terms of weight of right to approve or disapprove between the two? Or is it done in the usual pretentious government approach of purportedly good faith while the family representative is there only as a pawn. 

Salā: According to Salā the lease of customary lands has been in the Constitution for more than 50 years. “But I think the difficulty that our people are facing now is that it sounds foreign. The majority don’t have any idea of what that means, and it really comes down to advocacy work and for you as a customary land owner to implement the use of the lease. You need to come on board and create a lease because it’s available.”

Sarona: This is simply a pathetic cover up Salā. Now you are inviting the Samoans to come on board but why were they not properly consulted 50 years ago? Even a kid can see that this is not true. You are now putting the blame on the Samoans as if they had prior knowledge of the leasing mechanism and how it works. Please note, in the past, the Samoan people did not understand about leasing of customary lands, not because they were not interested, but because the government never did its rightful duty to its citizens – that is, they need to be properly consulted in a manner that is meaningful to the Samoan social and cultural values and not the way employed by consultation specialist and CLAC recently, which attracted only 2000 people (1% of total population).      

 Salā: “At the end of the day, government has no rights over customary lands.” 

Sarona: Oh how I wish this is the gospel truth. Alas, it is with a heavy heart that I have to accept the fact that at the end of the day, the customary land owners will lose their inheritance from the CREATOR GOD – the customary lands, through a faulty legal system that fails terribly to right the wrong, but instead, continues to pursue the interests of foreign investors and the minority local elite group, that associates intimately with the HRPP government. 

Salā: She also made it clear that under our Constitution, it provides the opportunity for the Samoan people to make use of their customary land by way of lease for authorized purposes. “There are a lot of families out there that are not coming under the law to use the provision of law and perhaps those are the ones that are having difficulties ensuring that the rights of the people that own the land are protected.”

Sarona: I thank the good LORD for all those families who have decided against leasing their God-given inheritance. They are, in fact, wise and visionary. Indeed, the more Salā promotes the idea of “customary lands being protected under the Constitution”, the clearer we see the integrated entrapment woven into the legal framework to ensure the paramount goal that all customary lands in Samoa are alienated” is achieved. Let’s ask ourselves now, what is the likely scenario concerning Samoans and their customary lands in the next 50 years? Well my friends including you Salā, most of us will be dead by then, but my forecast is this “no less than 50% of the Samoan customary land owners will be living as lessees on lands they once owned as their customary lands, unfortunately, that is no longer the case, because they have been alienated through the current faulty legal system, and as a result are held under fee simple freehold ownership”. Let’s see what your predictions are. In one of the 4 matai’s press releases, they challenged the Samoans about this dreadful scenario and we need to ensure that this will never happen.      

Salā: “There really needs for some full understanding of how the systems work in order for them to benefit, from relevant laws. For instance, the laws allows leases of customary lands for the purposes of Hotels development, for industrial purposes or manufacturing all those purposes. I suppose even the people that have money, do no entertain those particular opportunities. That’s where the setback comes in, in terms of promoting and making use of our customary land…,” she said. 

Sarona: Ok Salā, we are hearing loud and clear. Your line of argument is totally focused upon making money over the environmental values – the very foundation of Samoa’s being party to UNCBD, UNFCCC and UNCCD. But I guess that is ok fine, after all, we need to earn money to make ends meet. But let me just propose another setting whereby an environmental economist teams up with an ecologist come along and offer to conduct a biodiversity audit and an environmental accounting of the land proposed for development. The findings may not be very convincing initially but if the team is given amble opportunities to elaborate and to link all the necessary life giving services and products provided by the biodiversity and the encompassed ecological systems within the earmarked land, a clear understanding may then be developed within all parties involved that the best way to develop this piece of land is not for economic purposes like hotels but to establish a sustainable management strategy that support the family livelihood, and simultaneously promotes the health and status of the biodiversity embraced therein. By the way, ecosystems are very interesting entities, very similar to Samoans, they live in reciprocal relationships, they are interconnected and are interdependent. For example, if one ecosystem is destroyed, a lot more ecosystems will diminish and eventually become extinct as a result. I am not an expert in this field but I heard people talking about it so I just looked for some real life examples, and yes, what I heard is true. Look at the Fasitootai mangroves for example; some 30 years ago there were plenty mangrove crabs in this pocket mangroves. Today however, very few are caught. The determining factor appears to be the destruction of the mangroves. They say the mangroves provide a safe haven and food supply for mangrove crabs, the mangrove crabs in return provide numerous services that benefit humans and other ecosystems in the mangroves.            

Salā: According to Salā, 81% of Samoa’s lands are owned under communal basis. “Our customary lands manned by the Chiefs, because it’s our Chiefs that are the leaders of our lands, our families, our titles, everything to do with our customs. And if the chief is not alert or perhaps fully aware of these opportunities with the support of his or her family then there’s always a challenge and I suppose why the leases are not being widely used throughout the years. As I stated during my presentation only 300 leases have been registered and that only comes to less than 1% of 81% of customary land”.

Sarona: Thanks Salā for raising the issue about the chiefs. This is very important because prior to the amendments you alluded to, customary lands belonging to all the extended families can be registered under the paramount chief of the family. This is very risky, because the Torrens system does not recognise collective ownership. The system only recognises the name on the certificate of title. So what happens if the paramount chief dies before making a will that fairly distribute the customary lands for all members of the extended family? This is a disaster.  Also, the paramount chief can now use these extended family customary lands to secure his/her own personal loans, making them very vulnerable to alienation through loan default as described above. So again I challenge your view because they fail to provide any substantial information with real meaning and substance to improve the lot of all Samoans.      

Salā: “Understand that not all customary lands are presented in an economic sort of way but there are opportunities for our people that are more valuable like the tourism. “Like families who have land on the coast lines. Families that are actually in a very elevated, nice ocean view, I suppose its really a matter of our people coming on board asking questions, wanting to know more about utilizing the leases and also for the government to do more promotions and these opportunities of the lease of customary land that’s been in place for more than 50 years.” 

Sarona: I have a real first-hand experience with what you are saying Salā, and let me share this with you and hopefully, you will come to appreciate that what you are preaching is exactly the opposite of what you mean. I have provided above, a brief summary of what happened in the Utumalama land when it was leased out to a foreign investor. The 1.5km long white sandy beachfront was uniquely beautiful surrounded by clear blue lagoons with plenty coral cover – definitely not made for swimming. The inland side was wetland – it supported a rich variety of coastal and rare plant species, which means this piece of land holds ecological significance and must be protected for the sake of ecosystems themselves, as well as for the human community which depended to some extent, upon the products and services this unique landscape provided. Well that scenario has long gone; with leasing, the lessee saw no importance in ecology and the biophysical environment, but the focus was totally on making money. Somewhere in the Bible says the love of money is the cause of many evils. The saying is completely true in this case - the virgin cove investment in Utumalama is responsible for the destruction of a tremendous amount of natural landscapes and the associated biodiversity and ecosystems. The natural ecosystem services which the human community derived part of the livelihood is gone. I was informed that the damage inflicted is irreversible due to the seriousness of destruction. A very, very, sad story Salā; I hope others will learn from the mistake of our family which once owned Utumalama land.

O gai mokuga’afa ga e lafo aku i lumā mea ‘auā fo’i la kakou faasoa i legei lava maka’upu kaua kele, ia ‘u’u mau lou kofi Samoa. E le a’oa’ia e Laupu’ā Kamafaigā, e le faakogua foi e le makapia le magaia, a ole olega a le pu-make, o ‘ele’ele o lo kakou kofi mai le AKUA FOAFOA. Ole kakalo ma le loto maualalo, ia mau pea le ko’ovae ile kōfā faakamalii ma le faaukaukaga faa-fale’upolu, ia kakou puipui i lo kakou ola o kakou ‘ele’ele. Ia kaofi mau pea iai, kusa lava  po’o a fīkā e o’o mai, pe o’o mai foi le oki, ia kakou loko kekele ma faamalolosi ma ‘u’u mau lo kakou  kofi mo gei ma a kaeao. Ole upu a Paulo le aposekolo o guu’ese, “..O lo’u ola ua ia Keriso, a o lo’u oti o lo’u manuia lea”. E magaia foi upu a le kupu akamai o Solomoga, i laga kusi o Failauga 12:1 “Ia manatua LE na faia oe i onapō o lou taule’ale’a…”. Lafo pea ile ‘aufaigaluega a le AKUA  la lakou matafaioi, ae kalikonu le kaofi ua i fale le makega ole asō, o la kakou gafa kau’ave ole kausi ma puipui le foafoaga a le SILISILI’ESE auā e ala mai ai le kauisga o lo oukou soifua maua ma so’u gei ola.

Faamaglo le ‘auga’auga vaivai pe afai ua sala le gagana.

 

Sarona Saifaleupolu

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