Colonial dictates on Customary Lands is too much for Samoa and Pacific governments

829 Hits

author picture

Fiu Mata’ese Elisara

In a keynote address I was asked by the National University of Samoa to present in the Pacific Islands Universities Research Network Conference in September last year on the topic of “Evolving Principles and Practices of Customary Lands in the Context of Development and Climate Change”, I said… 

Countries must stop focusing on just profits through pursuit of economic growth, but prioritize people needs and wellbeing, address social justice, push environment protection, maintain ecosystem services and functions, respect peoples’ rights, and enhance cultural diversity as a Pacific reality. Development must be rooted in the Rio principles to replace current economic order steeped in arrogance, inequity, environment destruction, land grabbing, and greed. It should be anchored on genuine and durable partnership!

Pacific governments respond to economic and environmental crisis with policies that force customary lands as collaterals for investors. These bring finances of industrial production, fossil fuel, and create new markets allowing private sector to trade in world’s ecosystem services. But these approaches are fraught with risks largely untested on social or environmental impacts especially when increased demands extract natural resources, usurp customary heritage and lands. These are products of unsustainable production and consumption for the wealthy elites! Driven by corporations and neoliberal processes of globalization, they ignore limits of the carrying capacity of Planet Earth! They privatize public goods and commoditize global commons! 

Pacific peoples watch climate change reap havoc on our lands, homes, villages, food sources, agricultural plantations, native forests, infrastructures, ecosystem services, cultures, and peoples. Is this the sustainable development we want? Businesses, corporations, private sector, donors, and companies occupy the driving seat of this kind of market driven development - Sustained economic growth! They focus on profits, making money! Yet the burden is shouldered by the poor, the marginalized, and the majority that make up Pacific populations. Is this the future our Pacific peoples want? After ravaging the resources of Mother Earth for longer than history, we are beginning to realize how little we know about what we have done to ourselves! The enemy is us! Humans! It is our collective responsibility we avoid being the enemy within.   

Let me say this. One shifting goal post is the transition the MDGs to the SDGs. An ambitious and overriding commitment to “Leaving No One Behind”! The focus shifts from ‘developing’ countries in MDGs to ‘all countries’ needing development in SDGs! It is now universal! The key equity common but differentiated responsibilities principle conveniently ignored! Calculated and deliberate! The rich negotiate developing countries into submission to their agenda of insincerity, injustice, reneging on promises. 

Here is another! The World Bank this year no longer distinguishes between ‘developed’ countries and ‘developing’ ones. It eliminates the term ‘developing country’ from its development indicators and data vocabulary! It marks an evolutionary thinking about the geographic distribution of poverty and prosperity. The United Nations doesn’t even have an official definition for what a ‘developing’ country is, despite slapping this label on 159 nations! The effort by rich countries and institutions they control to run away from commitment is far too powerful to ignore! These are now universal, all countries needing development!

Lamentably, developing countries fail to stay the course pursuing rich countries deliver commitments on new, predictable, sustainable, and additional finance resources meeting their aid target of 0.7% of GNIs.  

It is hard to witness Pacific governments enmeshed into this agenda of economic dictate. The Pacific is arguably in the best position to preach sustainable development! We have lived it all our lives! And more! People are at the center! It is imperative the world moves from ‘sustainable development’ to ‘sustainable human development’! Putting poor people first; enlarging their opportunities live long healthy lives; to be educated; to have employment needed for a decent standard of living. It means generating rather than degrading the natural resource base; provide present and future generations with sustainable livelihoods. Development which does not improve the lives of the poor has no soul; one that impoverishes the environment has no vision; one that fails to empower individuals and communities has no anchor; one that fails to enlarge opportunities of people has no future! SHD is an outright rejection of development models which generate growth but fails to distribute benefits equitably; one that destroys the environment in the name of development; one which marginalizes people rather than empower them! 

Sadly the shifting goal posts of the rich are realities of today. They point to dictating the lives of developing countries, the Pacific included! And they do it deliberately, for their convenience!  

As Pacific Leaders converge into Apia this week I cannot ignore this pivotal opportunity to let them know that the global neo-colonial push to take over the customary lands in all our countries requires their coordinated, urgent and integrated attention.

 Pacific Island Countries’ Leaders are very aware of this as it is no secret! They have been hard pressed with dissenting voices in their own countries to caution them going down this pathway and anchor their land reform policies in ensuring the ownership and control of this non-negotiable resource, our customary lands, are secured.  

In Samoa, the Prime Minister and government continue to assure our peoples that the more than 80% of our total lands under customary and cultural ownership and control are protected by our Constitution despite the real and considered threats of customary land alienation posed by contemporary colonial dictates such as the Torrens System of Land Titles Registration through the Lands Titles Registration Act 2008. 

Whilst the LTRA 2008 provides a facilitative system of land titles registration for freehold land, fee simple rights and public lands, the inclusion of customary lands under it is being profusely rejected by many of our peoples in and outside of Samoa as repugnant to the fundamental spirit of our Constitution with specific reference to customary lands and as clearly articulated in the desires and wishes of our forefathers involved in drafting this supreme law of the country. 

In supporting this rejection of LTRA, I wish to list below historical and chronological events, expert views of some prominent peoples in the Pacific, Samoans in and outside of our country, and some well-known legal experts, who have commented on LTRA2008 supporting our ongoing struggle to not allow neo-colonial dictates usurp our rights and ownership of our customary lands.   

1. Sir Guy Poles warned that “…LTRA requires Samoan people to constantly check the land register to make sure the records were accurate …as it was one of the worst pieces of drafting he had ever seen; it had a number of loop holes which could be exploited against the interests of customary land owners…” (“The Implication of Applying the Torrens System to Samoan Customary Lands” – by Dr Iati Iati – published in Journal of South Pacific Law)

2. Even foreign powers that colonized Samoa in the past saw Samoan human rights were violated in their actions to usurp customary lands in Samoa – In 1890 a Constitutional order by German to prohibit alienation of CLs unless for official cases and on 14 June 1891 the Samoa Conference in Berlin decided that Samoans are rightful owners of all CLs in Samoa to manage and make decisions for their future and those of their children and to stop mortgage or sale of CLs to outsiders

3. World Bank in March 1999 through its Infrastructure Asset Management Project: stated that the government of Samoa “… prioritized land reform -  and the Project Credit of US$12.80 million to Samoa in Support of 2nd Phase of the Infrastructure Asset Management Program December 2003 introduced the Torrens system – ‘indefeasibility’ of title to land once land is registered - The program document explains … the customary lands (CL) system would be designed to allow the authority (‘pule’) over CL to be recorded .…this will turn 82% of CL into the Torrens system indefeasibility of title - Land Titles Registration Act 2008 (LTRA) lays the ground work and legal framework - to be mapped out, surveyed and recorded for indefeasibility of title scheme. – Pule faa-Sa’o and LTRA were born

4. Asia Development Bank (ADB) stepped in 2002-2004 – “…Samoa government will devise a strategy to improve access to customary land…and use of customary lands as collateral…the strategy….policy and legislative environment is for business development, specifically on legal impediments to economic use of customary lands, improving debt recovery, and facilitating secured transactions…” – LTRA progresses promoting business environment, land taxes, and debt recovery

5. This is a Pacific and Asia regional push by the colonial powers - Australia White Paper 2006 – the ‘Pacific Land Mobilization” push in the WP under its ‘Accelerating Economic Growth’ pose a most serious concern for the PICs with its more than 82% of cultural ownership of resources! – Caution at the time to PICs to reject this outright as this push by AusAID was meddling with the most important asset for Pacific peoples as any move to change the land tenure system of customary lands in the Pacific will result in civil wars and social conflict. Australia - PACIFIC 2020:“…the challenge for governments in the PIC is to steer changes in land tenure arrangements in support of economic growth, recording land rights, register titles and agreements, dispute settlements, geodetic definitions and satellite imagery

6. Immediate Past Attorney General Tuatagaloa Ming Leung Wai Response – (Joint Law Conference Samoa Law Society & Maori Law Society 7-10 July 2016) - Canvass only the relevant laws passed in the last 8 years related to CL and conclude that enacted laws will not result in alienation of CL; that government attempt to develop CL is within constitutional framework of Samoa….BUT added:

• I must concede that the wording of LTRA could have been better to make it clear that the Torrens System does not apply to CL – 

• “record vs registration” – Whilst the LTR Act did mention a few times the phrase “record of customary land”, it did not go far enough to clearly state that whilst customary lands can be recorded, they are not to be registered or treated the same as freehold or public land on the Land Register. 

• Last minute changes to the LTR Bill when it was before Parliament was the insertion of section 9(4) which attempted to clarify that no provision of the Act was to be interpreted in any manner that would permit or imply the alienation of customary land or affect or change the ownership in any customary land. 

• It was hoped that applying the purposive approach with the presence of section 9(4) would always favour the interpretation that the Torrens System does not apply to customary lands and that the LTR Act does not permit the alienation of customary lands. 

 

 

• The repealed Land Registration Act 1992/3 dealt with the registration of all types of land. Such practice continued under the new LTR Act but did not clearly spell out that the Torrens System does not apply to customary lands. 

• With the benefit of hindsight, it would have been better if a separate and stand-alone Act had dealt with the registration and recording of customary lands. 

7. A 2009 legal analysis of the LTRA by Wellington lawyer, Ruping Ye, argues that if combined with the Samoa government’s power to take customary lands for public purposes, ‘The operation will be like New Zealand’s conversion of customary land into freehold land in the early settlement days, through the Crown’s pre-emptive right to purchase lands from Maori, and sell them to settlers The consequences have been devastating in New Zealand, causing a century’s grievance to the native people and disturbance to the development of the nation. (Iati Iati - Journal of South Pacific Law)

8. Iati Iati (Journal of South Pacific Law) - In 2006, public concerns were raised that the Samoan government would adopt and apply the Torrens system of land registration to customary lands. In September, that year, O le Siosiomaga Society (OLSSI), a local non-government organization, claimed that the government would release a land bill that would introduce and apply the Torrens Land system to customary lands. OLSSI also warned that this system would conflict with customary land tenure principles and practices. It urged village mayors (Sui o le malo) to inform their constituents and make public enquiries about this matter. 

a. In the same year, the Samoa Party published an election manifesto which stated, ‘the HRPP government was secretly planning to register Customary Land under the Torrens Land Registration System’, if it was returned to power. 

b. The then leader of the party, Su’a Rimoni Ah Chong, expressed concerns that the Torrens system would conflict with customary land ownership principles, particularly the principle and practice of communal land ownership under the trusteeship of matai (heads of families), as opposed to individual land ownership.  

c. These marked the beginnings of a strong but uncoordinated opposition to what emerged as the Land Titles Registration Bill. The Samoa Umbrella for Non-Government Organizations (SUNGO) publicly opposed the Bill. Fearing that the Torrens system would undermine Samoan customary land tenure, they appealed to the government, ‘with the interest of all the Non-Government Organizations and Civil Based Societies’, to amend the Bill so that it would be in line with ‘the Customs and Traditions of Samoa’...In May 2008, it challenged the Prime Minister and the Attorney General to a public debate on this matter… 

d. A former Minister of Parliament, Le Tagaloa Pita, made a similar argument: he stipulated that the Bill would lead to an ‘alienation of Customary Land’ and that it was ‘contrary to the provisions’ of the Constitution. 

e. Asiata Saleimoa Vaai, the then leader of the Samoa Democratic United Party (SDUP) expressed a desire to launch a legal challenge to the Act. 

f. The fact that very similar concerns were expressed by different and apparently unconnected sources suggested there was substance to the criticism; usually, where there is smoke, there is fire.

9. The Case in PNG – Steven Sukot – Pacific Land Conference 2008

Papua New Guinea (PNG) Customary Land tenure system covers 97 percent of total land mass, is life support for 80 percent of total population. Land is Life! You take land away from people - you take away their Lives! Land means everything to us, more than money can ever buy. It is the essence of our lives. Our peoples depend on land for food, hunting, fishing, cultural practices, medicine, housing etc. There are spiritual and cultural connections between land and people. Our culture and traditions are neatly interwoven with land. This connection is not easily noticeable, poorly understood by non-indigenous peoples. Land is one’s identity; it is one’s existence; it is our birthright. The intimate association between people and their land is threatened by globalization and imperialism easily accepted by our government.  PNG is beautiful and blessed with rich natural resources. However, it is sad the development path pushed by our government puts indigenous land rights and our natural beauty at stake. Government push development models that result in social dispossession, cultural extinction, alienation of land, and people struggle to maintain control over ownership right to land from dominant, powerful, globalized and imperialized economy alien to us – the peoples of the land!   

10. In Vanuatu – the LAMAP DECLARATION 2009 - by over 100 chiefs, youth, women and communities at the National Land Meeting - Lamap, Malekula, Vanuatu 

We voice our deep concerns over the rapid alienation of land in the country by foreign investors and those with cash. Considering Ni- Vanuatu beliefs rooted in land, understood as a Mother and Source of Life - We resolve that land belongs to family, tribe or clan and not an individual; Government Land Reform program must concentrate only on leased lands, allowing chiefs to take care of customary lands; land in Vanuatu has no commercial value; any development that takes place on land requires indigenous custodians to have control and fair share of takings; we reject land registration program in Vanuatu to safeguard future generations and indigenous population.

11. For Melanesian Countries - The Buala Declaration 2016: MILDA (Autonomous Region of Bougainville, Fiji, Kanaky, Papua New Guinea, Maluku, Solomon Islands, West Papua, and Vanuatu)

In response to increasing threats to customary land and sea systems, posed by land reforms, deep sea exploration, seabed mining, and foreign agendas of aid agencies, international financial institutions, governments and elites within our countries. 

We re-affirm commitment to indigenous control of customary land systems and seas in relation to Melanesian ways. We unite to defend the control of Melanesian communities over land, sea, water, air and ancestral heritage. We re-assert sea systems and customary land are the basis of community life in Melanesia and committed to protect our indigenous land - from ground surface to centre of the earth, under the sea, including ecosystems, biodiversity, cultural heritage, waters of our rivers, streams and air.

The Melanesian definition of land is collective and inclusive of the sea. Land has and always will be the highest value to lives of our peoples, and so it will be for generations to come. Land is a non-alienable, it cannot be parted with and our relationship with land and sea is special and unique, and cannot be replaced by foreign value systems. We are custodians of the land and sea since time immemorial.

May I conclude by adding my voice to those arguing that the push to take over our customary lands in Samoa and the Pacific are a deliberate ploy of neo-colonialism by developed countries to defend their economic interests, reneging on commitments to assist developing countries. Economic development pressures underpin redefining sustainable development to ‘sustained economic growth’ creating injustices, undermine Rio principles, violate aspirations for genuine and durable partnerships enshrined in the SAMOA Pathway. I also argue the demise Samoa and Pacific countries face protecting customary lands, is a replication of the same deliberate and calculated agenda of developed countries to dominate and usurp.

Industrialized countries are the cause of a disproportionately large share of the world’s problems. They account for a fraction of the world’s population but their economic appetite consumes a huge amount of the world’s resources, land grabbing a clear part of that exploitative agenda. This unsustainable consumption and production result in environmental decline, social decay, indigenous peoples’ rights violation, and cultural erosion of an unimaginable scale. 

For the Pacific, customary lands are alienated, related human rights principles violated, daily livelihood of indigenous communities and traditional practices undermined, climate crisis worsened, profits dictate. The danger is all the more pernicious because shifting goal posts and insincere partnerships the culprits that engage the Pacific in their colonial dictates do not always confront us or governments directly. It becomes enmeshed in the institutional machinery that infiltrates the State apparatus and in many cases gain the complicity of government officials. 

As a simple chief from Sili, I again ask the Leaders of the Pacific Countries gathered in Apia this week, Is this the Future We Want? Will this ensure ‘No One in the Pacific is left behind’? 

I urge our Prime Minister, the Government of Samoa, Indeed the Leaders of the Pacific gathered in Samoa this week - In your collective, integrated political and economic pursuit for genuine and durable partnership, for sustainable human development, for climate justice, and protection of customary lands – I again seek the spirit of George Bernard Shaw to remind your good selves and us all - “This is the true joy in my life, being used for a purpose recognized by oneself as a mighty one… that my life belongs to the whole community and as long as I live, it is my privilege to do for it whatever I can. Life is not a brief candle for me. It is a splendid torch I have got hold of for the moment, and want to make it burn as brightly as possible before handling it on to future generations”!

© Samoa Observer 2016

Developed by Samoa Observer in Apia