“Law, Custom and Constitutionalism: Customary Land Tenure in Samoa”

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Fiu Mata’ese Elisara

Ladies and Gentlemen, Talofa lava! As an Indigenous Samoan, Let me first pay my respect to the Indigenous Owners of this land and thank their ancestors, past present and future, for letting me stand before you on these sacred cultural lands!

When Associate Professor Tamasailau Suaalii-Sauni invited me to present this address, I felt immensely honored, but also very uncomfortable. Honored because, as a non-academic and simple matai from the village of Sili Savaii, it is hard to believe that I was considered.

But most uncomfortable because as an ordinary citizen I have little knowledge nor legal background to speak on the topic asked of me. Nevertheless I find solace accepting the invitation knowing that this was your invite! As most of you are legal experts, I trust you will forgive my context as a concerned and worried citizen of Samoa on the imposition of ‘globalization’ on our customary lands and how related law changes are affecting the constitutional and customary rights of our peoples.   

Let me preface my address on this standpoint - The battle to protect customary lands in Samoa, indeed the Pacific, has to be fought and won on two fronts. First, the security front where victory spells freedom from rights violations as a result of the Torrens System through detrimental impacts of the Land Titles Registration Act 2008 (LTRA).

Second on the economic and social front where victory means freedom from want, leaving no one behind, engaging development partners with customary land owners to realize durable, full utilization and economic use of these lands through enabling legislations to ensure protection of our land rights, and customary land ownership remain non-negotiable.

 

Context of Land Reforms and L.T.R.A. 2008 and Concerns Raised:

Dr. Elora Raymond (Samoa Observer 29 October 2013) published `Our Land, Precious Land’ - was concerned that the 1998 Asian Development Bank (ADB) report released at the very beginning of Prime Minister Tuilaepa’s first term, threatened the government that ADB would stop lending money to the financial sector unless Samoa agreed to two conditions. First, privatize state owned enterprises. Second, pass laws allowing mortgages against customary land.

If Samoa agreed, ADB will lend US$7.5 million to the financial sector, and provide another US$1.0 million in technical assistance and legal advice. In 2000, ADB lent US$3.5 million (Project Number 33167) to the financial sector. In exchange the government agreed to privatize state owned enterprises, create a land registry, and allow mortgages against customary land where the individual chief authority (pule-faa-Sa’o) was an integral part. Neither Parliament nor the Samoan people were consulted about these radical changes to customary land law.” 

World Bank in March 1999 - its Infrastructure Asset Management Project to Samoa “… prioritized land reform and… US$12.80 million supported 2nd Phase of the Project in 2003…” Many say this introduced the Torrens system and ‘indefeasibility’ of title to Samoa customary lands where the program document explains “… the land system would be designed to allow the authority (‘pule’) over customary lands to be recorded and turn 82% of customary lands into LTRA indefeasibility of title…” 

ADB in 2002-2004 noted – “…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…”  

The Australia White Paper 2006 for Asia and the Pacific – acknowledged that the ‘Pacific Land Mobilization” push under its ‘Accelerating Economic Growth’ posed a most serious concern for the Pacific Island Countries with its more than 80% of cultural ownership of lands and resources. The “PACIFIC 2020” report at the time clearly noted “…the challenge for Pacific governments is to steer changes in land tenure arrangements in support of economic growth…through recording land rights, register titles and agreements. 

Past Samoa Attorney General Aumua Ming Leung Wai (Joint Law Conference Samoa Law Society & Maori Law Society July 2016) asked - Will the laws passed by Samoa’s Parliament within the last 8 years result in the alienation of customary lands and therefore contrary to the Constitution? Answer: No! But admitted – I must concede that the wording of LTRA could have been better to make it clear that the Torrens System does not apply to customary lands - whilst LTRA mention “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 …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. 

Current Attorney General, Lemalu Herman Retzlaff (Samoa Planet 9 December 2017) and President of the Samoa Law Society, Su’a Hellene Wallwork (Samoa Planet 14 December 2017) both support that customary lands are protected under the Constitution claiming that “no customary land has been lost as a direct result of LTRA”.       

A 2009 legal analysis of LTRA by Wellington lawyer, Ruiping Ye (“Torrens and Customary Land Tenure: A Case Study of the LTRA Act 2008 of Samoa”), argues that if combined with the Samoa government’s power to take customary lands for public purposes - (Taking of Lands Act 1964) - ‘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 to settlers - the consequences have been devastating in New Zealand, causing a century’s grievance to native people and disturbance to the development of the nation. 

Professor Guy Powles (Interview with Dr. Iati Iati) warned that “…LTRA is 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…”   

Nanai Dr. Iati Iati (Samoa Observer 23 January 2018) – “Development policies are being implemented too quickly in Pacific island countries, to the detriment of their people”) cites…” policies are intended to reform customary land tenure systems...yet the good governance agenda means they need to change this land tenure basis to allow for investment to take place…the Samoa government introduced a land leasing system where – in one case, for 120 years – effectively alienates land from customary landowners” 

In 2006, Nanai Dr Iati Iati – (“Controversial Land Legislation in Samoa: It’s Not Just Land”) – noted public concerns raised that government would adopt and apply the Torrens system of land titles registration to customary lands. In September, that year, O le Siosiomaga Society (OLSSI), warned that the government would release a land bill that introduce and apply the Torrens system to customary lands. 

In the same year 2006, Su’a Rimoni as Leader of the Samoa Party noted ‘the HRPP government was secretly planning to register Customary Land under the Torrens Land Registration System’ and concerned that the Torrens system would conflict with customary land ownership principles and practice of communal land ownership under the trusteeship of matai. 

In 2008 Samoa Umbrella for Non-Government Organizations (SUNGO) publicly opposed the Bill and appealed to amend it to conform with ‘the Customs and Traditions of Samoa’...In May 2008, we unsuccessfully challenged the Prime Minister and the Attorney General to a public debate on this matter. 

Leuluaialii Tasi Malifa -Law lecturer in USP for many years (2008 with Dr Iati) - argues that LTRA Section 9(4), inserted at the last minute to clarify that no provision of the Act was to be interpreted to permit alienation or affect ownership in any customary land, does not provide protection for customary land ownership rights! Instead, it exposes customary lands to other avenues by which they can be alienated. The use of certain words like “may” or “in a manner” eliminate certainty with regards ‘inalienability’ of customary land and opens up relevant constitutional provisions concerning customary land to court debate to define their meanings. Ultimately judicial interpretation on these matters will be decided in the Courts, especially the Supreme Court.

 

Experiences on Customary Lands in Pacific Countries:

I (Samoa Observer 04 September 2017) warned Pacific Forum Leaders who attended the Apia Forum Leaders Meeting last September about dissenting voices in their own countries cautioning going down land reform policies and pathways that risk ownership and control of customary lands.

You will be well advised to read Pacific examples of indigenous citizens fighting to retain and protect their rights and ownership of customary lands -The Case in PNG – Steven Sukot report in the Pacific Land Conference 2008 (23 January 2018 Radio NZ – Eddie Tanago – told PNG government to stop land grabs disguised as investments!); In Vanuatu – the LAMAP DECLARATION 2009; and The Melanesian Buala Declaration 2016 (Bougainville, Fiji, Kanaky, Papua New Guinea, Maluku, Solomon Islands, West Papua, and Vanuatu) 

When you read these Indigenous concerns you will find inconceivable the urgency to add our voices as Pacific peoples to caution dealing with these challenges of ‘land grabbing’ through globalization and colonization rearing their usurping heads in different forms targeting customary lands, ignoring our human rights as Indigenous Pacific peoples. Ultimately this will inevitably create crisis in our peaceful communities.

This pathway is expensive in economic, social, ecological, and cultural terms! Sometimes bloody! In human terms invariably late! Time for action is NOW! But the ‘now’ unfortunately seems to take on a different meaning when it is clothed in garments of conflicting agendas - of exploitation, manipulation, euphemisms of so-called ‘diplomatic protocols’!

We cannot afford to sit on the fence and just watch this proceed unchallenged! Time has passed for mere rhetoric! Surely, it is prudent, more humane, to act preventively meeting these threats upstream rather than to have them confront us as crisis downstream! As Judges and Pacific professionals of the cloth we urge you to infiltrate this vision in your responsibilities. Nib it in the bud!

 

Deeds System, Constitution, L.T.R.A., Other Legislations:

Let me first clarify. Not having been privy to the process of legislation reforms in the last two years, I can only make these comments in the context of existing legislations. I understand that the Alienation of Customary Lands Amendment Bill 2017 presented to Samoa Parliament two weeks ago address issues of customary land leases and licenses, as well as mortgaging of these by investors (Samoa Observer 05 February 2018). So I am not able to make substantive comments on the Bill having not seen it.

Up to 2009 – The Deeds System of title by instruments registered in Register - provided security on the person with ‘superior instrument’ as true owner. In my view, the spirit of “Alienation” of Customary Lands Act (ACLA) 1965 and Constitution Article 102 forbidding customary land alienation was secured.

Leasing of Customary Lands in LTRA, however, is contrary to and violates the spirit of ACLA 1965 and repugnant to the Constitution! The government continues to defend that Customary Land is protected under Article 102 of Constitution. Sections 9.4 and 9.5 were added to LTRA in the last minute to try and confirm that.

For me, I fail to understand why the Act was given the title “Alienation” of Customary Land Act 1965 when the Constitution clearly forbid “alienation” of customary lands! Why was LTRA 2008 amended in 2015, 7 years later, specifically on ‘recording versus registration’ of customary lands? Why are Customary Land leases/licenses registered (not recorded) under LTRA subjecting these to the ‘indefeasibility’, state secured, and ‘fee-simple dna’ dictates of the LTRA?

It is clearly contradictory for government to state that customary land is excluded from LTRA when customary land leases, customary land licenses, and decisions of the Land and Titles Court on customary lands are legally required to be registered under LTRA!   

Even the authority of the Registrar is extensive with overriding power to register all land dealings by way of instrument of registration. But this is the catch – By way of that registration, ‘indefeasibility’ and ‘insurmountable title’ passes - hence the disastrous intent of Sections 32 and 33 of LTRA! - Upon registration in own CT folio under Registrar authority, such land whether freehold, customary or otherwise, become ‘indefeasible’, ‘insurmountable’, and ‘freehold’ - liable as security for a loan, risking customary lands to be lost forever! 

Samoans rightly claim customary lands and traditional resources through ancestral ownership - a birthright respected as lawful and brings with it authority and sovereignty. We are therefore stunned that the dangers posed by LTRA are serious, tantamount to forever losing our customary lands and resources! Yet we have never authorized, nor given up, any of our ancestors-given rights of ownership.

Leifi James Faleauto (legal expert) advocates - Each family (Aiga) member has rights to customary land ownership and resources which cannot be taken away without their consent. No government has the right to transfer or extinguish the ancestral rights of any Aiga member without their consent through a National Referendum (Constitution Article 109). The LTRA is unconstitutional, unfair and unlawful because it bundles up the rights of individual family members to land, takes them away, and gives them to a single person (Sa’o). The matai (Sa’o) as ‘pule’ of family land can lease and register customary lands even if extended family did not know. The result is, if this fails, customary land is lost forever from family!  

The Constitution promises impartial Justice for all Samoans. Yet LTRA discriminates against Samoan citizens themselves - contrary to Articles 14 of the Constitution on Rights regarding property and Article 15 on Freedom from discriminatory legislation. LTRA discriminates and transfers the rights of many Samoans without their consent to a few. Land alienated to investors, wealthy individuals, corporations, companies, seized through mortgage by banks, and allow land to be taxed. Section 25 of LTRA favors Samoans resident in Samoa and discriminates against Overseas Samoans - in breach of Article 15 of the Constitution. 

 

On the Rights of Customary Land Owners when CL are Leased and when Lease is used as Security by way of Mortgage for loan financing, we ask…

Are customary landowners of the leased lands accorded rights not less than those enjoyed by commercial lessors? What of the right to approve or disallow the use of the lease as security? The right to receive penalty interest on unpaid rents, and monies payable for benefit of landowners under the lease?

The power to approve or disallow sub-letting, or assignment of lease? The right to receive lease payments? In the event of default, is the first priority for monies benefit the landowners? The right to enforce environment covenants?

The right to initiate rent reviews? The right to access leased lands and premises to determine state of repair, confirm compliance with covenants, permit traditional rights and observances? The right to notify mortgagee of breach of lease and request action be taken? The right to receive information on security of mortgage, including profitability and other financial details? The right in respect of capitalization of improvements when the lease ends?

Why does the Minister sign customary land leases and not land owners themselves? More fundamentally, will the unfortunate experience of customary land ownership and human rights violation of our Maori, Aborigines, American Indians, Hawaii, First Nations, Inuit brothers and sisters not replicated on us and our lands in Samoa and Pacific Island countries?  

Clear answers to all these questions are key! For me, the amendment of the ‘Alienation’ of Customary Lands Act 1965, some 52 years later, in the ‘Alienation’ of Customary Lands Amendment Bill 2017’ tabled in Parliament two weeks ago, is a response to the promise by the Government to ADB Board on 10 August 2016 that it will amend legislations to address the harms in a complaint we submitted to ADB on 29 August 2014.

I will be surprised if these key questions are adequately addressed in same. I again ask, if the spirit, intent and letter of these amended legislations respect the Constitution that forbids ‘alienation’ of customary lands, why continue to call the Bill just tabled in Parliament, 52 years later, the ‘Alienation’ of customary Land Amendment Bill 2017? 

 

The Complaint to ADB: http://www.inclusivedevelopment.net/wp-content/uploads/2014/08/Samoa-matais-complaint-to-ADB-AM-FINAL.pdf

Four of us chiefs (matais – Leuluaialii Tasi Malifa, Telei’ai Dr Sapa Saifaleupolu, Dr Lavea Kenneth Lameta, Fiu Elisara) filed an official complaint to ADB on 29 August 2014, objecting to a series of ADB-backed reforms that could lead to the alienation of customary lands in Samoa.

We were gravely concerned that the reforms, carried out over more than twelve years without meaningful consultation of Samoan people, could individualize control over customary land throughout the country, http://www.inclusivedevelopment.net/asian-development-bank-reforms-threaten-samoan-customary-land/ ultimately placing large tracts of land in banks. 

Leuluaialii Tasi Malifa, lawyer and matai of Afega village explained: “While the Constitution allows customary land to be leased, it prohibits alienation of customary land from rightful owners – including through mortgage. ADB-backed reforms violate the spirit and the letter of this fundamental Constitutional protection.”

Under ADB-driven reforms, Samoan law has been changed to allow mortgages over leases of customary land granted by the Minister of Lands, Surveys and Environment, without any consultation whatsoever with the aiga. As a result, Samoans are in danger of experiencing the same type of corrupt land deals as those recently exposed in Papua New Guinea, where local communities have been duped out of large swaths of their customary land. 

Telei’ai Dr Sapa Saifaleupolu, matai of Saanapu, Fasito’outa and Samatau Upolu, said: “Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century.”

Dr. Natalie Bugalski, Legal Director at Inclusive Development International, New York, said “The reforms in Samoa are typical of ADB’s approach. ADB has a habit of viewing land solely as a commodity to be integrated into financial markets. ADB needs to respect that some societies have a different relationship with their land and value its enduring social function above its financial value. By failing to hold meaningful consultations and properly assess the social implications of the reforms, ADB has violated its own safeguard policies” Given the fundamental and adverse changes being imposed on fa’aSamoa, all further land reforms should be halted and full and meaningful country-wide consultation be carried out”. 

Lilomaiava Ken Lameta, matai of Vaimoso and Safotu said: “Consultations ensure people across the country are aware of the reforms and how they may be affected. People should have an opportunity to provide their opinions, which should be taken into account in decision-making. If ADB and government listened carefully, they will hear plenty of good ideas to enhance customary land productivity in a way that truly benefits local communities.”

Fiu Mata’ese Elisara, matai of Sili Savaii, and Executive Director of Ole Siosiomaga Society Incorporated, said: “These reforms are incompatible with the indigenous culture and political institutions of Samoa, and they are inconsistent with the needs and aspirations of the Samoan people. The failure of the ADB to comprehend this has sadly meant a missed opportunity to achieve the laudable goal of promoting economic use of customary land in a culturally, socially and politically appropriate manner, and without meddling with our tenure system.”

Leasing of customary land to outsiders for long durations under the Torrens system through 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 and the Constitution of Samoa. 

We therefore requested an independent investigation by the highest level of governance and grievance mechanism of ADB through the Complaints Review Panel (CRP). The gravity of what is at stake in Samoa is far too powerful to ignore! 

 

CRP Findings and ADB Board Decisions:

ADB Board Supports Complaint of Matais – ADB and Staff Failed to Comply With Own Policies and Procedures on Technical Assistance to Samoa – Samoa Government Given Opportunity To Implement Promised Legislation Changes to Address Harms in Complaint - 

CRP finds prima facie evidence of non-compliance with ADB’s operational policies and procedures…and prima facie evidence that this non-compliance…will likely cause direct and material harm to the complainants and to other affected people. Given the prima facie evidence of non-compliance and the seriousness and widespread nature of the resulting harm, CRP concludes that the non-compliance is serious enough to warrant a full compliance review.  

Pursuant to the ADB Accountability Mechanism Policy (AMP), CRP determines the complaint eligible and recommends that ADB Board authorize a compliance review of the Samoa Technical Assistances… 

This conclusion is clear. Government is amending legislations to address the harms in the complaint – and am confident that the “Alienation of Customary Land Amendment Bill 2017” is the government’s response to this. 

CRP also concluded that prima facie evidence prove ADB failed to comply with its own policies and procedures and non-compliance is serious enough to warrant a full compliance review. CRP recommends ADB Board authorize this. It is further clear that ADB failed to engage communities in meaningful consultations!  

Ladies and Gentlemen - Time does not allow me to delve into other important aspects pertinent to the topic. Suffice for me to briefly refer to them for another time or discuss in our Q&A session:

Unlawful 120 Year lease on 600 acres of customary land from villages of Sasina, Fagae’e, Letui in Savaii to US citizen Jesse James - tantamount to alienation, deemed unconstitutional!

LTRA Sec 48 – application of Part VII of The Property Law Act 1952 – where registration of mortgage is registration of a ‘conveyance of property rights’ – contravenes Art 102 of Constitution! 

doctrines of “Privity of contract” and “privity of estate” wrt CL leases signed by the Minister  

Free Trade Agreements (FTAs) – WTO/PACER+/EPAs, etc. – In 2016 the New Zealand Government did a study on PACER+ that allegedly ‘rides’ on customary lands – its implication on revenue loss; loss of sovereignty and national policy space; prohibitive subsidies; impact of dumping of cheap goods into the country; loss of jobs eg. Closing of YAZAKI; manipulative labor mobility policies; etc.  

Injustices of ‘Valuation’ of Customary Lands.

Unit Titles Act 2009 - facilitates Foreign Ownership and Investors Interests under LTRA - a further attack on customary lands! 

CLAC Act 2013 –the Consequential Amendment – 15.2 – explains for the first time - an interest in lease or license of CL that the Minister can grant…”includes a mortgage” of interest of the lessee or licensee – Insert in ACLA 1965 – defies prohibition in Articles 102 and 109 of Constitution

Samoa graduation from LDC 2014 to middle income country and how grant benefits as LDC transfer to exorbitant interests of Concessional Loans as a ‘middle income country’ - and how this links to reasons why government push for LTRA

 

Conclusions:

Let me conclude - I stated a personal standpoint in my Introduction on security, as well as economic and social fronts. The challenge today, is to acknowledge that the gap between rhetoric and reality is most painfully evident in the field of human rights.

We cannot have a globalized world where people are left behind and the rich are free to squeeze the social, cultural, ecological and economic life out of the poor. In the context of our customary land tenure systems, it is remiss of us if we allow ourselves to be pressured into premature laws and agreements by the momentum of contemporary land grabbing and land reform processes. Or content ourselves with forced decisions which paper over indigenous non-negotiable realities and fundamental disagreements.

Resistance from locally affected peoples and communities is widespread as they increasingly assert their rights to self-determination and veto over forced globalization, colonization, the exercise of governments and corporate powers. Citizens are demanding accountability as condition for their free prior and informed consent! 

As an ordinary citizen, I thank you for the invitation and for understanding my context in this address. Pending a review by us of the Alienation of Customary Lands Amendment Bill 2017, I continue to be concerned and worried!

It is incumbent on us to stay the course and win the battle on customary lands, to free our peoples from the disastrous impacts of LTRA, and free our citizens from related economic, cultural, ecological and social want.

Engaging in genuine and durable partnership with customary land owners in a pathway for sustainable development that realizes responsible utilization of ecological resources, wise economic use of customary lands, whilst protecting land rights and ownerships - will ultimately leave no one behind! That is our goal! Both in Samoa and Pacific countries! 

Fa’afetai Lava! God bless!

© Samoa Observer 2016

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