By letter of 13 November 2017, Telei’ai Lagipoiva Dr. Lalotoa Mulitalo Seumanutafa was invited to be an expert panellist at the Conference ‘Pacific Law, Custom and Constitutionalism: A Three Part Series: Conference 1: Aotearoa NZ and Samoa in Dialogue: Law Reforms in Customary Land Tenure, Religious Rights and Traditional Leadership” Faculty of Law, University of Auckland, 12-14 February 2018.
Dr. Mulitalo was originally invited to speak as a panellist on the topic “Implications for Legal practice, Legislative Drafting & Constitutional Law Reform” given her background as a law draftsperson for Samoa and the Pacific.
Dr. Mulitalo however was later asked to give the second keynote address on the topic “Customary Land Tenure”. Dr. Mulitalo speaking on Customary Land Law was “to provide a much needed perspective on that theme and to bring balance to the perspectives of Maori Land Law Expert ‘Judge Caren Fox’ and Afioga Fiu Mataese Elisara La’ulu. As it panned out, unfortunately for the Conference, the Maori Land Law Expert did not make it to the Conference.
At the Conference, given the overall theme, Dr Mulitalo’s topic was entitled: “Law, Custom, and Constitutionalism: Customary Land Tenure, Samoa.”
For the first part, her presentation focused on the fabric of the laws in Samoa, how much custom is evident in that fabric of Samoa’s laws and the Constitutionalism of those laws.
The second part was on ‘Customary Land Tenure in Samoa”, and the Laws pertaining to those, Parliament laws and the Constitutionalism in those Parliament laws, relating to customary land in Samoa. This is the part where much interest was evident at the Conference, and it is now put together and more appropriately entitled: WHY THE ‘LAND TITLES REGISTRATION ACT 2008’ IS INCAPABLE OF ALIENATING CUSTOMARY LAND”. Given the significant interest on this topic, it is now released for the public’s information:
What the Constitution of Samoa says about customary land – 3 Types of Land
Article 101 of the Constitution of the independent State of Samoa says there are three (3) types of land in Samoa, Customary land which is land held in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage; Freehold land which is land held for an estate in fee simple; and Public land, which is land vested in Samoa being land that is free from customary title and from any estate in fee simple. In essence, as it is commonly appreciated, customary land accounts for 81% of the land in Samoa; public land accounts for 15% and freehold 4%.
Article 102 of the Constitution then prohibits the alienation of customary land; except where an Act of Parliament authorizes such which is only in two modes: (a) the granting of a lease or licence of any customary land or of any interest therein; and (b) the taking of any customary land or any interest therein for public purposes. The two Acts of Parliament these have resulted in are (a) The Alienation of Customary Land Act 1965 (53 years old now); and the Taking of Land Act 1964 (54 years old now). While the former law allows customary land to be leased for the benefit of customary landowners as is statutorily required, the latter allows the government to build public hospitals, schools, roads, bridges for public use.
The Current Fabric of Laws of Samoa and Laws Relating to Customary Land
According to the Consolidation of Samoa’s Laws Project carried out annually by the Office of the Attorney General, as of December 2017, Samoa’s law count (Acts of Parliament) totalled 291 laws. From this 291, inclusive of the Constitution, some 20 laws relate to land (the 3 types in the Constitution). In the order of years they were enacted, these are as follows:
(1) 1960 Constitution of Samoa;
(2) 1952 Property Law Act (NZ):
(3) 1964 Taking of Land Act;
(4) 1965 Alienation of Customary Land Act;
(5) 1966 Land Titles Investigation Act;
(6) 1972 Alienation of Freehold Land Act;
(7) 1977 Samoa Trust Estates Corporation Act;
(8) 1981 Land and Titles Act;
(9) 1989 Lands, Survey and Environment Act;
(10) 1990 Samoa Trust Estates Corporation Reconstruction Act;
(11) 1990 Village Fono Act;
(12) 1993 Land for Foreign Purposes Act;
(13) 2004 Planning and Urban Management Act;
(14) 2007 Land Transport Authority Act;
(15) 2008 Land Titles Registration Act;
(16) 2009 Unit Titles Act;
(17) 2010 Survey Act;
(18) 2010 Land Valuation Act;
(19) 2010 Spatial Information Agency Act;
(20) 2013 Customary Land Advisory Commission.
There are other laws which have some (lesser) relation to customary land as discussed further below but from the above 20 laws, 5 impact directly on customary land. Again, in the order of years they were enacted, these are as follows. (1) 1964 Taking of Lands Act; (2) 1965 Alienation of Customary Land Act; (3) 1981 Land and Titles Act; (3) 1990 Village Fono Act; (5) 2013 Customary Land Advisory Commission Act.
As the reader will note, in the analysis of laws relating to land (x 20) and the laws directly impacting on customary land (x5), the ‘Land Titles Registration Act 2008’ is listed in the 20 above but not in the 5 below, the 5 that directly impact on customary land. And this brings us to the question of why this law, the LAND TITLES REGISTRATION ACT 2008, is indeed incapable of alienating customary land. In summary, the 5 reasons in statutory interpretation and in case law analysis that support this position are as follows: (1) Nothing in the Act allows the alienation of customary land; (2) The Act expressly says ‘alienation of customary land is prohibited’; (3) the very limited reason the term ‘customary land’ is used in this Act is that it is only due to the operation of other existing laws; (4) other related laws that allow customary leases for public purposes have more influence on customary land than this Act; (5) since enactment in 2008, no court proceedings has ever challenged the provisions of the LTR Act on any allegation of customary land being alienated.
c) Some Background to the LTR Act 2008
Before the Land Titles Registration Act was enacted by the Parliament of Samoa in 2008, in its place was the Land Registration Act 1992/1993. As its Long Titles stated, this 1991/1993 Act was an Act to regulate the law relating to the registration of deeds affecting land. The Land Titles Registration Act 2008, at section 94 repealed the Land Registration Act 1992/1993. The Land Registration Act 1992/1993 was a deed system of registration, and the Land Titles Registration Act 2008 introduced the Torrens system of land registration in Samoa.
Prior to 2008, a series of consultations were undertaken on the Land Titles Registration Bill 2006, 2007 until 2008 and enactment. These were carried out with the Samoa Law Society, the Judiciary, the relevant Government Ministries, the private sector and the public. A Fugalei matter which eventuated in the 2002 and for which proceedings reached the courts in 2005 (Civil claim against the Ministry responsible for Lands/Government, and 2012 Judicial Review against the Ministry responsible for Lands/Government) made the Torrens system of land registration more preferential at the time.
In this Fugalei matter, the applicant lost some $480,000 for the “purported” purchase of a piece of land at Fugalei near Apia containing an area of about four acres in 2002. This resulted in a court case, a civil claim against the government claiming loss. Although the price of $480,000 was paid by the plaintiff purchaser, the Registrar cancelled the registration of the deed of conveyance because prior to the registration of the deed, parcel 627 shown in the legal description was not recorded on the land register and in particular was not recorded on the land register as owned by Ms McCarthy. There was therefore no such parcel of land known as parcel 627 which Ms McCarthy could have conveyed to the applicant. (Chang Tung v Attorney General  WSSC 24 (31 October 2005)) The applicant also lost any hope for any remedy from the government or any party in the judicial review proceedings. Chan Tung v Attorney General  WSSC 42 (12 October 2012)
In those proceedings, the material differences between the Deed’s system of registration and the Torrens system of registration as referred to by His Honour Chief Justice Sapolu is taken from Land Law in New Zealand (2003) by Hinde McMorland & Sim vol 1, para 8.009:
“(1) The Deeds system is nothing more than a method of registering instruments which affect the title to land. Under the Torrens system it is the title itself that is required by registration”.
“(2) Under the Deeds system, the legal estate in the land passes on the execution and delivery of the deed. Under the Torrens system, the registered estate (which for many purposes may be regarded as equivalent to the legal estate) does not pass until the instrument is registered. Under the Deeds system, the legal estate passes by an act of the parties; under the Torrens system, it passes by an act of the State”.
“(3) Except in so far as registration under the Deeds system affected priorities, a deed did not acquire any additional effectiveness or validity when it was registered.
The title to the land depended upon the deeds themselves, not upon registration. Thus the registration of a void deed had no effect on the title. Under the New Zealand Torrens statute (the Land Transfer Act 1952), however, the registration without fraud of a void instrument is effective to vest and to divest title and to protect the registered proprietor against adverse claims.”
The adoption of the Torrens system of registration of land was a modern step for Samoa, and brought about great faith and hope for the registration of freehold land and public land, for government to be liable for any further mishaps to the bona fide purchaser of freehold land, and was not intended to affect or alienate Samoa’s customary land.
At this point, we return to the responses to why the ‘Land Titles Registration act 2008’ is incapable of alienating customary land.
d) WHY THE ‘LAND TITLES REGISTRATION ACT 2008’ IS INCAPABLE
OF ALIENATING CUSTOMARY LAND.
Reason 1 - Nothing in the Act allows alienation
In interpreting laws, the first point of reference for the courts and any user of any law, is the law itself. What does it say, or not say (silent) on the issue? The issue is – is there a likelihood customary land law would be alienated by the provisions of the LTR Act? An analysis of the provisions of the Act shows no provision of this Act allows this. In fact, the provisions of the Act prohibit this.
Reason 2 – The Act itself expressly prohibits the alienation of customary land
Again, the first point of reference for the interpretation of any law is the law itself. Section 9(4) is very clear on this. The provisions says that “No provision of this Act may be construed or applied to: (a) permit or imply the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or (b) permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the determination of title to customary land.
Where in any Act, there is such a provision, it means exactly that. “No provision” allows the alienation of customary land. So for the Land Titles Act 2008, it has 98 section, this means none of its 98 sections permit or is implied to permit the alienation of customary land.
In addition the definitions of certain words in section 2 (Interpretation) clearly further prohibit the alienation of customary land under this Act. For example the words - “land” includes all estates and interests, whether freehold or chattel, in real property… but does not include customary land for the purpose of registration of land under this Act (other than registration of licences or leases of customary land); “record of customary land” means a record of customary land maintained under section 5(1)(l) but does not include registration of licences or leases of customary land; “Register” means the Land Register required to be maintained under section 8 but does not include a record of customary land; “registration” means the administrative process which, under this Act, affects, confers, confirms or terminates interests by means of entries in the Register but does not include record of customary land. Section 2(3) states further that reference to any folio under this Act does not include record of customary land as part of the folio. It is evident from these additional prohibitory provisions that the Act is made incapable of alienating customary land. The drafting may be accused of being repetitious, but in some laws in commonwealth countries, these are accepted to ensure there is no room to permit, expressly or impliedly, the prohibition.
Reason 3 - The very limited purpose the term ‘customary land’ is used in the Act i.e. due to the operation of other existing laws
Some law drafters may argue this is the strongest ground on the position that the LTR Act does not alienate customary land. The question is - If we are saying “customary land” is not alienated nor negatively affected under this Act which registers land in Samoa, why are the words “customary land” in this Act?
It is crucial to note that this Act only registers freehold land and customary land, and also registers customary land leases, but not customary land. It is the lease of the customary land that is registered and not the customary land. The only reason the words ‘customary land’ are in the LTR Act 2008 is due to the operation of other existing laws, i.e. the Land and Titles Act 1981, and the Alienation of Customary Land Act 1965.
The Land and Titles Act 1981, sections 11 and 12 requires the Register (CEO) of Courts to transmit judgments of the Land and Titles Court to the Land Registrar (MNRE), and the Land Registrar is to enter in the record of customary land such judgment, order or declaration. The Land Registrar is the Land Registrar defined in section 2 of the Land Titles Registration Act.
The Alienation of Customary Land Act 1965, under section 10(1)(c) requires an applicant for a customary land lease or licence (customary landowners) to register that lease or licence with the Registrar of Lands. This is the Registrar of Lands in the Ministry responsible for lands i.e. the CEO of MNRE.
This is how laws are drafted, and interpreted. At the time of drafting, they are not drafted in a vacuum, a drafter surveys the laws existing at that time and drafts accordingly.
The drafter must take account and make references to existing laws. Thus, when the Act is enacted and later used and interpreted, a provision is not to be interpreted on its own lest its true meaning is misinterpreted and taken out of context.
A law provision (section) must be read with the sections before and after that section, and other existing laws, in order to achieve the correct interpretation of a single provision. These are the basic principles of statutory interpretation. A section must be interpreted in context, lest it is misinterpreted and defeats its purpose in the legal framework an Act purports to put forward.
It must also be noted that these provisions of the Land and Titles Act 1981 (sections 11 & 12) and the Alienation of Customary Land Act 1965 (section 10(1)(c) are brought forward from the Land Registration Act 1992/1993 (referred to above) which was repealed by the Land Titles Act 2008. Thus this is a continuation of provisions that existed since 1992/1993 to give effect to a 1965 and a 1981 laws, and are not brand new provisions instigated by the Land Titles Registration Act 2008.
These positions immediately above are further supported by the following: the restrictive use of the term ‘customary land’ in the LTR Act 2008. The Land Titles Registration Act is made up of 98 sections, 16 Parts, 4 Schedules. From the beginning to the end of the Act, out of 98 sections, the reference to ‘customary land’ is in 3 sections only, 2, 5, 9. These are the Interpretation section (s2); the section on the powers of the Registrar (s5) and the section on the inclusion of land (s9). The Revision Notes to the Act mentions ‘customary land’ 4 times, but is not counted as revisions notes do not form the substance of the Act. Thus clearly, the sparse and few sections (x3) with the term ‘customary land’ shows the use of the term ‘customary land’ is only for a very limited purposes, i.e. to permit the operation of other existing laws in Samoa.
Reason 4 - Related laws to customary leases
While we are on the laws relating to customary land - it is worthwhile to note other laws that are not solely about customary land but make reference to customary land. For example the laws that require certain persons and authorities to take account of the lawful use or access of customary land. These are for example, laws regulating the work of authorities servicing public utilities. Such laws are the Samoa Water Authority Act 2003; Forestry Management Act 2011; Broadcasting Act 2010; and the Telecommunications Act 2005. Under these Acts, if entrance or access to the customary land is required, the Authority/authorised persons are required to enter into discussion with all persons having title to such land, with a view to obtaining agreement as to the manner in which the Authority may exercise such rights and powers.
In certain cases, customary land need to be leased under the Alienation of Customary Land Act 1965. The process of leasing customary land under that Act must be adhered to.
A look at the Customary Land Lease Registry shows this. Out of the 81 % of the customary land of Samoa, some 1.5% only are under customary land lease. It is therefore a very small portion of customary land that is currently being leased, under the provisions of a 53 year old Act i.e. the Alienation of Customary Land Act 1965. This means some 79.5% of customary land of Samoa is untouched by any customary lease. On this 1.5% of customary land under customary land lease, a total of 308 customary land leases are registered. Of this number, some 31 are hotels and businesses whereas some 277 are other leases e.g. customary land leased for the LDS Church, Education, Digicel, Samoa Tel, SWA, Police, Other churches. The operation of the above mentioned laws/Acts come into play. Relevant authorities must comply with relevant laws for the purposes of servicing the public through public utilities- at the same time ensure compliance with the rule on the non-alienation of customary land.
The customary landowners are enjoying the benefits from the customary land lease payments made under these leases, without the fear of customary land being alienated. They cannot be alienated as this is fiercely protected not only by the Land Titles Registration Act; the Alienation of Customary Land Act, but also by the supreme law, the Constitution in Article 102. Where any Act breaches the Constitution, it is subject to being declared by the courts as unconstitutional and void ab inito i.e. void from the beginning. This brings us to an analysis of the relevant court judgments to date.
Reason 5 - Case Law /Court Decisions – The Land Titles Registration Act 2008 and Alienation of Customary Land Act in the Courts of Samoa
The Land Titles Registration Act 2008
Although the databases immediately available for research may be inconclusive on the number of cases recorded (paclii.org; samlii.org), an analysis of the available case law in those databases are still useful to draw from. In the courts of Samoa (Court of Appeal and Supreme Court), some 11 cases are found to have discussed the Land and Titles Registration Act 2008. These are namely Betham v Skelton  WSSC 117 (18 July 2017); Fesolai v Boon  WSSC 206 (22 December 2016); Pune v Drake  WSSC 33 (4 February 2015); Faataualofa v Faataualofa  WSSC 37 (14 June 2012); Chan Tung v Attorney General  WSSC 42 (12 October 2012) ; AG v Namulauulu  WSSC 72 (12 September 2013); Seabee Ah Yeung v Moe Jay To  WSSC 49 (26 May 2010); Pune v Drake  WSCA 8 (14 March 2016); Boon v Registrar of Lands (MNRE)  WSSC 149 (14 December 2017); Police v Toluono  WSSC 12 (22 March 2012); Carter v Ioane  WSSC 14 (12 April 2010). In none of these 11 court decisions have any allegation on the alienation or attempts to alienate customary land been brought to court. All these 11 cases are mainly on disputes and claims made on freehold land and public land, 2 of the 3 types of land in Article 101 of the Constitution.
Alienation of Customary Land Act 1965
On a further search, some 7 court decisions to date discuss some provisions of the Alienation of Customary Land Act 1965. These are: ET Oldehaver & Company Ltd v Attorney-General  SamoaLawRp 1; [1970-1979] WSLR 159 (27 October 1977); Vaosa v Attorney-General  WSSC 23 (4 August 2000); Attorney General v Alaiva’a  WSSC 46 (27 January 2003); Ott v Leuluniu  WSSC 41 (21 January 2005); Faalavaau Tavita v AG, WSSC, 2003; Liaga v Taleni  WSSC 166; CP 160 of 2009 (13 December 2010); Kalevini v Tausaga  WSSC 90 (16 June 2017). An analysis of these 7 court decisions show that none of these contain or claim or allege the attempted taking of customary land unlawfully under the provisions of the Alienation of Customary Land Act 1965.
These proceedings relate mostly to the preliminaries and the circumstances to the development or continuation of a customary land lease agreement e.g. the renewal clause; the validity of a lease agreement; claims against the government for not carrying out administrative and statutory duties under the Act.
Given the discussions above, the Land Titles Registration Act 2008 is incapable of alienating customary land.
It is important to note that whether a law is initiated or instigated by government or by the public sector, where such a law contravenes the Constitution, it is subject to being declared unconstitutional and void, notwithstanding its origins.
Governments seek the best way forward for the development of their own countries. Samoa has taken a leap of faith through the leasing and mortgaging of customary land leases. Samoa has done so with the utmost respect and ultimate caution to its existing laws and the supreme law, the Constitution of the Independent State of Samoa.
As ‘customary land’ is a measina Samoa; such a move requires boldness in leadership, governance with a clear vision, and faith in the populations that one day, the populations will see to it that “All laws are made for the benefit of the people they are to regulate”.
This is a basic principle of law making and a rule of thumb for legislative drafters. So when courts interpret legislation, it is towards the positive; and the most favourable interpretation is such that will make a law work.
Ultimately, it is presumed that it (a law) has been made on such basis- for the benefit of the people it is to regulate. FAAMANUIA TELE LE ATUA IA SAMOA!!!