The changes proposed by the Government in the Alienation of Customary Land Amendment Bill 2017, tabled in Parliament last week, are for the protection of Samoa’s inheritance.
Deputy Prime and Minister of Natural Resources and Environment, Fiame Naomi Mata’afa, assured that they are designed to strengthen the provisions relating to leasing and licensing of customary land.
She is adamant that Samoa’s customary lands will never be sold under any circumstances, whatsoever.
According to the bill’s Explanatory Memorandum, the key amendments deal with leases and licensing of customary land to protect the interests of landowners.
They also exist to provide them with “certain rights” that are often enjoyed by commercial lessors, under a Lease or License Agreement.
“The key amendments in relation to mortgages of leases over customary land is to facilitate the mortgaging process and put in place a number of legal prohibitions and requirements that will protect the ownership rights of the beneficial land owners whilst also providing for the interests of mortgagors and mortgagees,” the Memorandum reads.
“Overall, the amendments aim to strengthen the legal framework to safeguard the Constitutional protection against the alienation of customary land whilst ensuring the authorised manners of alienation (i.e. lease, licence and mortgaging of leases over customary land) comply with the Constitution.
“The outcome is to improve the people’s standard of living through promoting greater economic use of customary land via leasing, licensing and mortgaging of leases over customary land.”
According to the Memorandum, all Samoans stand to benefit from these amendments.
The proposed amendments indicate: “Despite that the lease or license is approved by the Minister as trustee for beneficial owners under subsection
(1), the beneficial owners have the following rights in relation to such lease or licenses granted;
(a) the right to approve or disallow the use of the lease as security;
(b) the right to approve or disallow the assignment of the lease or license whether as a result, of a default by mortgagor or not;
(c) the right to receive payments in accordance with the terms of the lease or license
(d) the right to approve or disallow a sublease;
(e) the right to initiate and enforce a review of rents as provided for by the terms of the lease;
(f) the right to enforce beneficial covenants under the terms of the lease or license, including obligations of the lessee or licensee to- (i) provide employment to assist in business development or (ii) to provide community services of infrastructure and (iii) the right to enforce environmental protection obligations applying to the lessee or license under the terms of the lease of licence.”
Furthermore, the amendments indicate the process of registration and discharge of such mortgages is set out in the Regulations made pursuant to this Act.
However, it’s unclear as to what the regulations are.
Currently the process of registration and discharge of mortgages in the Lands Titles Registration Act 2008 applies to the registration and discharge of such mortgages.
Other amendments target the publication of application.
Currently the Chief Executive Officer shall publish in the Savali, government owned newspaper.
The amendments would allow “Savali or any newspaper of television and other forms of advertising determined by the Chief Executive Officer.”
Further amendments seek that a notice fixing date or period has increased from three months to six months and that the Chief Executive Officer may extend the period under subsection if the C.E.O. considers that further time is warranted for a particular application.