Deputy Prime Minister, Fiame Naomi Mataafa, has reassured the country – and Samoans all over the world - that Samoa’s customary lands are safeguarded.
In doing so, the Minister of Natural Resources and Environment has again rejected claims there is a risk of Samoans losing their customary land. According to a statement from the Press Secretariat, Fiame said that under no circumstance would the traditional stakeholders lose ownership of their “inheritance.”
She is convinced that the Alienation of Customary Land Amendment Bill 2017, which she tabled in Parliament last week, reinforces the work the Government is doing to protect customary land.
She noted that it’s been ten years since Government started eyeing customary lands and that the leasing of customary land is nothing new.
She is mindful, however, of concerns raised by a group who claims that the leasing of customary land will lead to loss of land ownership.
“Land in Samoan culture is regarded as an inheritance from God and connected intimately to the matai system,” she said. “The fear is that if land is lost so will the matai system, hence also the culture of Samoa.”
Fiame acknowledged that the complainants are of the opinion that promoting just the economic aspect of customary lands is contrary to Samoa’s commitment to sustainable development.
“They fear that the environmental, social and cultural pillars of sustainable development will be ignored if economics takes the highest priority,” she said, noting that almost 90% of Samoa’s communal land mass remains idle and undeveloped.
And the amendments contained in the Alienation of Customary Land Amendment Bill 2017, tabled in Parliament, addresses these concerns.
“The amendments,” reiterated the Deputy Prime Minister “is for the protection of Samoa’s inheritance, our customary lands.”
She reassured that the amendments are also designed to strengthen the provisions relating to leasing and licensing of customary land.
The following is the explanatory Memorandum on the proposed amendments;
ALIENATION OF CUSTOMARY LAND AMENDMENT BILL 2017 SAMOA
Explanatory Memorandum Object and reasons
This Bill provides for amendments to the Alienation of Customary land Act 1965 (''the Act'') with the objectives of:
• Strengthening the provisions relating to leasing and licensing of customary land; and
• Facilitating the mortgaging of leases over customary land
• the key amendments to leases and licenses of customary land is to protect the interests of beneficial land owners and to provide then with certain rights that are often enjoyed by commercial lessors under a lease to License Agreement.
• the key amendments in relation to mortgagees 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 .
• Overall, the amendments aim to strengthen the legal framework to safeguard the Constitutional protection against the alienation of customary land whilst ensuring the authorized manners of alienation (i.e., lease, license and mortgaging of leases over customary land) comply with the Constitution.
• The outcome is to improve e the people's standard of living through promoting greater economic use of customary land via leasing, licensing and mortgaging of leases over customary land. All Samoans stand to benefit from then amendments.
Some relevant clauses
CLAUSES 1: provides for the short title and commencement.
CLAUSES 2: This clause amends section 4 by inserting a new sub-section (5) that provides a list of rights and powers for beneficial owners of customary land in relation to a lease or license granted under section 4 of the Act.
a. Section 8(1) by providing additional requirements for the publication of an application for a lease. That is, the application should also be published in any other newspaper or television or other forms of advertising as determined by the Chief Executive Officer. This requirement is in addition to the current requirement for the publication in the Savali alone id restrictive and allowing publication using a variety of media outlets will ensure a wider audience in Samoa and accessible by beneficial owners living overseas.
b. Section 8(2) by increasing the period for publication from 3 to 6 months to allow more time for beneficial owners to lodge any objections. This will provide more time for the beneficial owners living overseas to lodge any objections.
c. Section 8 by inserting a new subsection (2A) that empowers the Chief Executive Officer to extend the publication period if it is warranted.
d. Section 8(3) by requiring the applicant of a lease to provide a copy of the determination by the Land and Titles Court to the Chief Executive Officer as proof of ownership of the customary land over which the lease is applied for. A further amendment to section 8(3) (b) substitutes the reference to ''Savali'' with ''under this section'' in the light of the publication options provided under the amendments to section 8(1)
CLAUSE 6: This clause amends section 16 by substitution with beneficial owners to take legal actions to recover outstanding unpaid rental payments under a lease or a license. This new section also permits the beneficial owners to take legal action without the consent of the Minister.
CLAUSE 7: This clause inserts a new Part 3 entitled ‘‘provisions Applicable to Mortgages of Customary Land’’ and inserts the following new sections:
a. Clause 19 provides for the mortgaging of leases over customary land and sub-section (1) sets out a number of protections to the interests of beneficial land owners, such as-
I. A mortgage cannot be created without the prior written consent of the beneficial land owners must be secur3e first and must be in writing to support a mortgage;
II. A mortgage of the lease over customary land must be registered under the Land Titles Registration Act 2008;
III. A registration under subsection (1) (b) does not in any way confer a right of ownership over the customary land.
b. Clause 19(2) sets out some prohibitions that will protect the interests of beneficial land owners and ensure the lease over customary land is not mortgaged more than once. It further provides that such a second or subsequent mortgage must not be registered and is avoid if it has been created and registered;
c. Clause 19(3) prohibits the mortgagee (bank or financial institution) from taking any action any action against the customary land that is being leased and mortgaged in the event of a default. This section also gives priority to rental payments over any outstanding payments in the event of a default of the mortgage. This amendment protects the interests of the beneficial land owners and ensures the rental payments are paid up first before the mortgage or other repayments under a mortgage default;
d. Clause 20 prohibits the assignment of a lease unless the beneficial land owners have consented to in writing;
e. Clause 21 provides for regulation making power relating to the process of mortgaging of leases over customary land. The Regulation will cover such matters as the rights of mortgagees arising from a default under a mortgage of a lease over customary land, and the processes and conditions applying to the exercise of those rights. The Regulations have been prepared for these and other matters necessary for the implementation of the mortgaging of a lease over customary land.
f. Clause 22 clearly states that two specific Acts do not apply to the mortgaging of leases over customary land. That is, the land Titles Registration Act 2008, expect for the process of registration and discharge of such mortgages applies; and the property Law Act 1952 (NZ).
g. Clause 23consequentially amends the Land and Titles Court 1981 by excluding from the jurisdiction of the Land and Titles Court any disputes relating to leases over customary land.
The bill remains in second reading in the House with parliamentarian to resume its debate on the proposed amendments when they return to session later this year.