Fiu writes to Asian Development Bank

By Fiu Mata’ese Elisara 18 September 2018, 12:00AM

The crusade by a group of matai (chiefs) to highlight their concerns about the risk of customary lands being alienated as a result of Asian Development Bank (A.D.B.) project continues.

The chiefs include Lilomaiava Dr. Ken Lameta, of Vaimoso, Telei’ai Dr. Sapa Saifaleupolu, of Samatau, Leuluaiali’i Tasi Malifa, of Afega, and Fiu Mataese Elisara of Sili.

In their initial complaint, the group 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. 

Four years later, Fiu writes to the Special Project Facility (O.S.P.F.) of the A.D.B, giving us an indication of where they are at with their complaint:


Dear Warren Evans/all,


It has taken us more than a week to consider whether or not to reply to your email dated 4 September 2018 which attached what you stated as OSPF’s final Report on our complaint of 9 September 2014. 

For us complainants, when we successfully transferred our complaint to the higher level of ADB grievance mechanism through the Complaints Review Panel (CRP) in April 2016 it was an admission and acceptance by ADB that OSPF failed its problem solving mandate for reasons we submitted and eligibility for CRP to take over our complaint  ended OSPF involvement in our view. 

We fail to understand how OSPF justified to continue its problem solving role through its monitoring implementation of consultation process and related actions to its TA Completion Report this year on16 August 2018 when we as complainants with the ‘problem’ were no longer part of its OSPF process. When OSPF states it issued its problem-solving completion report on 5 May 2016 and its Monitoring Report 9 February 2017 we are confused as OSPF failed and in our view should have exited as of April 2016 when CRP took over.

Hence we are surprised with your email, and to be advised that OSPF was submitting a letter to us with its final report. On viewing the letter and said final report, we found its condescending spirit and content brevity irritating given OSPF failed us and it was done and buried as of April 2016.

Notwithstanding these concerns, we have nevertheless decided to accord OSPF the following response and take liberty in the courtesy of copying those included in this reply as they were involved with us in the OSPF process:


1.We have kept records of relevant communications and documents that are part of the rather complex ADB grievance mechanism process we had to go through as complainants since 2014. This continues today whilst monitoring the actions of our Government to amend legislations they promised ADB/CRP and its Board in August 2016 they will undertake to address the harms detailed in our complaint. OSPF is undoubtedly aware that the draft Alienation of Customary Lands Amendment Bill 2017 currently in the process of the Samoa Parliamentary third and final reading is one we are currently analyzing and watching closely its outcome. Based on this, and the signs so far are unsatisfactory to ourselves as complainants, we intend to re-trigger the CRP recommendation in August 2016 to the ADB Board to carry out an investigation of our complaint.


2. As you are aware, the report of CRP investigation of our complaint detailed a series of justified and legitimate reasons through a number of stated prima facie evidences they found to then advice ADB Board to proceed with the investigation. However a stay of execution in the decision of the ADB Board in August 2016 was to give the Government of Samoa and opportunity to amend legislations to remove the harms stated in our complaint. As complainants we have the opportunity to re-trigger that CRP recommendation to the ADB Board to proceed with the investigation should we find the outcome of the Government actions unsatisfactory.


3. As stated in 1 above, we wanted to await the outcome of the Samoa government legislative actions such as the Alienation of Customary Lands Amendment Bill 2017 currently before Parliament for its 3rd and final reading before we invoke the CRP recommended Investigation of our complaint. This will likely be our next step as we find the Government of Samoa ongoing efforts as peace meal, inadequate and unacceptable.


4. Our complaint has catalyzed a huge number of peoples, mainly Samoans living outside Samoa, supporting our complaint and have broaden their own concerns into establishing the Samoa Solidarity International Group (SSIG) which is a global movement in USA, New Zealand, Australia and indeed Samoa engaging in a number of protest marches in the countries they reside and in Samoa pushing for a repeal of the Lands Titles Registration Act 2008 (LTRA2008) that introduced the Torrens System of Land Titles registration in to Samoa. The global SSIG has engaged in securing financial support for activities that SSIG Samoa utilizes in its village awareness programs and has now taken the Government of Samoa (GoS) to court on their efforts to repeal LTRA2008 based on their view that it is unconstitutional. SSIG has further established a Political Party “Samoa First“ to run in the next General Election with one of its sole purpose of repealing LTRA2008 and secure the inherent protection of Samoa customary lands as dictated by the Samoa Constitution. 


5. As complainants, we have supported and took part in the SSIG protest marches in Samoa because of our fundamental belief in the cause on customary lands discourse detailed in our complaint. However we have not formally joined SSIG for reasons that their broader mandate outside our customary lands complaint could dilute our case as we need to keep the integrity of our complaint intact.


6. We have written widely in local and regional newspapers, interviewed and talked on regional radios and programs (NZ and Australia) as well as in Samoa, presented in Universities (Samoa and Auckland) on their requests, and have accepted invitations from Samoan diaspora in the USA and NZ to speak about our customary lands complaint. These efforts are well documented in formal avenues of institutions, local newspapers, social media, and other information avenues.


7. On the invitation of the Parliamentary Committee that is reviewing the Alienation of Customary Lands Amendment Bill 2017, we had prepared and presented to them a comprehensive close to 70 pages assessment and felt that the Committee received our comments well. But we will see when this farms out in the final outcome of Parliament third reading of the Amendment Bill. 


8. OSPF states that our complaint of 9 September 2014 was focused on four (4) elements being lack of consultations; use of customary lands; inadequate environment and social due diligence; and disclosure of documents. We have on record our communications to ADB (OSPF and CRP), to GoS through CLAC, MNRE and Attorney General Office, etc. detailing our clear concerns on GoS and ADB failure on all of these four focus areas. We also raised a number of times without any response to date from GoS and ADB/OSPF on the  conflict of interest in the OSPF recruited communication specialist when we discovered (now able to prove) that she is ‘married’ to the current GoS Consular in American Samoa who was Head of the Prime Minister’s Ministry during the time of the TAs in question. A conflict that was not disclosed during the time of interview. To date, OSPF and ADB have failed to give us the courtesy of a response on this legitimate and recorded complaint.


9. OSPF ignored the concerns we submitted in a number of correspondence we sent GoS and ADB/OSPF/CRP about the unilateral decision of OSPF to terminate the Project Manager and give these responsibilities to the recruited communication specialist. OSPF further ignored the reported concerns from the GoS CLAC legal team on the incompetence of the communication specialist when she failed her communication requirement and responsibilities to clearly communicate to village communities because she could not speak Samoan well enough to convey the consultation messages. They ended up implementing these important tasks.  


10. We also referred to a November 2017 implementation report by the Program manager to state our concerns about the failure of CLAC, the communication specialist, GoS and ADB to comply with the clear requirement for meaningful consultations and further failure to comply with the requirement of Article 109 of the Samoa Constitution in respect of the Referendum requirement on matters related to customary lands.  .


11. The OSPF Final Report clearly states that it is the ‘leasehold interest’ of customary land leases that would be mortgaged, yet all the proposed legislative work and current Amendment Bill states that it is the ‘customary land leases’ themselves that are being registered under the LTRA2008 (Torrens System) and targeted to be mortgaged. This deliberate confusion continues to cause much problems and concerns. Samoa Observer published one of our write-up (one of many) submitted on the insincerity of the GoS on this concern and brings in many other concerns that deals with treatment of adjudicated decisions of Lands and Titles Court on customary lands now required by LTRA2008 to be registered in same.        


12. The comments in the Final Report document that talks about “...Aside from a number of recommendations made for Project...” listing establishing CLAC as secretariat with skilled staff and budget for it to function well; form a legal working group to draft legislative reforms; pilot test reforms; and Agribusiness support project to organize awareness raising events with business communities, banks, and Chamber of Commerce to help alleviate fears and provide design options for businesses to consider; and also saying that 4 Banks now provide finances to 9 businesses...- these are all false reports in our view subject to confirmation. For example, CLAC continues to have a few staff members without the skills required nor budget to implement its so-called “One-Stop Shop” intent of GoS for customary lands issues under its CLAC Act 2013. We have never been privy to any reports from Legal Working Group despite our many requests for same and promises from OSPF, GoS, CLAC, and others to share drafts with us. We are not aware of any pilot testing of reforms taken. The agribusiness component was one of our concerns in complaint but the reply from OSPF refuted our allegations that the agribusiness was an avenue for GoS and ADB to increase the leasing framework of customary lands. ADB/OSPF informed us that this was not part of the overall intent of theTAs. Now it is! - as stated in the report. 


13. Part III (2) of the Final Report refer to ‘Consultations” - It is clear from this that OSPF and GoS failed to comply with meaningful consultation and our previous communications on this support this. We had been asking for Minutes of all consultations, summary of issues discussed, response prepared, records of participants feedback, response by GoS on same, assessment on quality of consultations, etc. etc. but nothing has been submitted to our requests despite promises to share these with us when available. 


14. Part III (3) of the Final Report refers to Legislative Framework alluding to GoS introducing amendments to confirm in law precepts that guide reform etc. Our submission to the Parliamentary Committee on the Alienation of Customary Land Amendment Bill 2017 demonstrated our concerns about the insincerity of GoS in this proposed legislation and how inadequate and piecemeal this attempt is when many related dangerous legislations are not even contemplated to be addressed    


15. The Final Report under Part IV states that CRP Committee Report 18 August 2016 recommend a compliance review not proceed. This is incorrect as it is our understanding that ADB Board was giving GoS the opportunity to attend to legislation reviews and amendments to address the harms in our complaint. The ADB Board member representing the United States of America walked out of the ADB Board decision because he disagreed with the stay of execution option and he wanted the investigation to proceed as recommended by CRP.


16. The former Head of State who signed the LTRA2008 has gone public in his total reverse views on this through video interviews, local newspapers, keynote addresses he has been asked to present on this issue, etc. These have exposed ADB, GoS, the Prime Minister, the former Attorney General under their clear policy and legal responsibilities enshrined under Article109 of the Consitution requiring them not to submit any Bill that affect customary lands for the assention of the Head of State unless and until the requirement for Referendum has been first met.   


17. OSPF will agree that this complaint has been challenging for us as complainants especially when it failed its mandate on problem solving for us. As complainants, the challenge continues for us under the auspices of CRP. There is a lot more bridges to cross. Whilst there are efforts within ADB system that we are aware of in their attempt to use their regulated processes and time limitations to deny us justice in the outcome of this, we continue to stay strong in moving forward to secure it.


18. Evidence of success are through the strong and powerful global movement of SSIG and related national actions in establishment of Samoa First Political Party, the court case already filed by SSIG against the Samoa government, the financial and moral support from Samoans around the world, an ongoing active social media discussion that is fuelling extreme sharing of opinions and feelings on this issue, etc. will help ensure our ultimate goal to destroy the ADB TAs and GoS intent to alienate customary lands and continue the spirit of the Constitution prohibiting customary land alienation.  

Finally, we hope you will publish this response in your ADB website and look forward to viewing it there when we next check. We attach again the OSPF final letter and report sent to us on your email of 4 September for their information and context.


Fiu Elisara 

For the Complainants

By Fiu Mata’ese Elisara 18 September 2018, 12:00AM

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