How alienation of customary lands can happen
Re: Section 32 of L.T.R.A. incapable of alienating customary land
The problem is we have an amended version of the law now, which is still operating under the Torrens System and by nature the Torrens System deprives members of the family who are not on the registration document of their rights to the customary land which has been amended to now only involve leases of customary lands.
However, that still is alienating the land ownership rights of the majority of the aiga potopoto who now have been unilaterally deprived of their ownership because the Torrens System removes them and only allows the named registrant the title to such lease of customary lands.
Whereas the customary lands and any leases of customary lands are still the collective property of the family.
So there is still alienation happening to the members of the family who are not on the registration document of said leases.
But even more disturbing is that between 2008 and 2015, the L.T.R.A. 2008 required all land including customary lands to be registered. That was amended in 2015 but we have no idea how much customary land was actually registered during that 7 year period.
That is the danger we now are facing. Customary Land that was registered during that time frame definitely alienated the rights of the family members who were not included on the registering documents.
Therein lies the violation and there have been lands, which were registered and “alienated” by virtue of removing land title or ownership rights of the family members NOT included on the registering document.
That is the violation that is L.T.R.A. 2008.
Customary lands cannot be registered as required by the Torrens System and maintain the same property rights of all family members because the registration document does not allow for every member of the family to be named on the document.
That means there are 99% of family members who have lost their rights to this land because of the Torrens System which by the way was designed specifically for this result, to separate the native land holders who held land collectively from their customary lands by requiring the registration and the registration would determine the owners of the land because that is how the Torrens System works.
It removes owners not named on the registering document.
If that is not alienation nothing is.
An owner who loses his right of ownership by virtue of a registration document has lost the land. That means 99% of the customary landowners of Samoa have lost their rights under this law.
Is that not alienation when 99% of the owners lose their claim to the land?