A group of matai fighting for the protection of customary lands in Samoa has stepped up their fight.
The group who lodged a complaint with the Asian Development Bank (A.D.B) in 2014 on the back of fears about the alienation of customary lands has elevated their complaint to the Compliance Review Panel (C.R.P), the highest level of grievance mechanism in A.D.B.
Confirmed by their Spokesperson, Fiu Mataese Elisara, the decision was made this week following frustrations at the lengthy delays taken by the Office of Project Facility (O.S.P.F) of A.D.B to find a solution.
According to the chiefs, the problem solving process to date has “failed to address” their fundamental concerns as clearly articulated in their complaint.
In their initial complaint, Fiu, Lilomaiava Dr. Ken Lameta, of Vaimoso, Telei’ai Dr. Sapa Saifaleupolu, of Samatau and Leuluaiali’i Tasi Malifa, of Afega expressed deep concerns about the individualization, financialisation and alienation of customary land.
Their concerns arose as a result of A.D.B Technical Assistance (TA) initiative for Samoa to “Promote the Economic Use of Customary Lands”.
They argued that the project had been carried without meaningful consultation across Samoa.
According to the group, under a series of projects called Promoting Economic Use of Customary Land, the A.D.B has driven land and financial sector reforms in Samoa to make it easier to lease customary land and to use those leases as collateral for loans.
“The A.D.B wants to create a system through which a single authority figure can unilaterally lease out customary land, without consulting other members of the aiga,” the group says in a statement.
“Under the reforms, the lease agreement could then be used by the leaseholder to access credit from a bank. But if the leaseholder is unable to repay the loan, the bank can take control of the lease, which could cover large tracts of customary land for decades.
“The chiefs points out that leasing of land to outsiders for long durations, registering these under the Torrens system of land titles registration through the Land Titles Registration Act 2008 (LTRA) that does not recognize collective ownership of the extended family, and then mortgaging those leases with banks to secure interests of investors, is tantamount to customary land alienation, forbidden by customary laws as well as the Constitution of Samoa.”
Speaking to the Weekend Observer, Fiu said that while they have transferred their complaint to the C.R.P, they will still engage in the consultation process being worked out by the consultant and government promised to commence in May.
In the meantime, the C.R.P is requested to investigate whether the A.D.B’s safeguard policies, including the Indigenous People’s policy, were complied with because chiefs do not believe that some of the central concerns with past reforms affecting customary land tenure will be addressed.
“The chiefs believe that an independent investigation by the higher level of governance and grievance mechanism of A.D.B through C.R.P is necessary because of the gravity of what is at stake in Samoa - the very fabric of the customary way of life and cultural references of all Samoans, the integrity of the matai (chief) system, the inter- and intra-generational responsibility to ensure protection of customary lands, the real danger that the TAs will amount to alienation of customary lands, to name a few are inevitable as a result of these projects.”
A detailed statement issued by the group will be published in full in tomorrow’s Sunday Samoan.
The government has repeatedly rejected claims by the group.
Last year, former Attorney General Aumua Ming Leung Wai assured that customary lands are protected=.
“Government wants to protect our customary lands and has no intention to amend Article 102 of the Constitution that would authorize the sale of customary lands,” Aumua told the Savali.
“Customary land cannot be sold or mortgaged according to Article 102 of the Constitution of Samoa.
“However, customary land can only be leased or licensed under the Alienation of Customary Land Act 1965.
“Customary lands could also be taken for public purpose under the Taking of Land Act 1964.
“If Government wants to allow customary land to be sold or mortgaged, then it must first amend Article 102.”
At the time, Aumua also explained the process to amend Article 102.
“The only way to amend Article 102 is a two thirds majority of Parliament approval and by holding a public referendum,” continued Tuatagaloa.
“And a two thirds voter’s majority from referendum or pelepesite is mandated by law for the constitutional amendment to be adopted.
“All other articles of the Constitution can be amended by two thirds majority in Parliament but Article 102 is the only article that has the added requirement of a public referendum.
“And Government wants to protect our customary lands and has no intention to amend Article 102.”