The Lefaga land decision and what it means
Justice Tuala Warren’s decision of 4 December 2018 proves in my opinion that all customary land leased is alienated from the aiga traditional owners. Let me explain:
A. Every customary land lease is deemed public land by the ACLA 1965.
Alienation of Customary Land Act 1965
11. Payment of rent or other consideration
(1) Every such lease or licence shall operate as if it was a lease or licence as the case may be of public land, but the rent or other consideration derived therefrom shall be received by the Chief Executive Officer in trust for the beneficial owners of the land or interest therein as the case may be.
(2) It is unlawful for any lessee or licensee under any lease or licence granted under this Part of this Act to pay any such rent or other consideration directly to any such beneficial owner.
(3) The Public Finance Management Act 2001 applies to such rent or other
consideration received by the Chief Executive Officer, except that no charge for the Financial Secretary’s services shall be deducted.
(4) The Chief Executive Officer or the Chief Executive Officer of the Ministry of
Finance may account as statutory expenditure for such rent or other consideration, plus any amount of interest certified by the Chief Executive Officer of the Ministry of Finance to have been earned thereon, and less any unpaid fees and commission payable to the Chief Executive Officer in the matter, to the agent or agents of the beneficial owners.
(5) Neither the Chief Executive Officer nor the Chief Executive Officer of the
Ministry of Finance nor the Government is liable to pay any rent or other
consideration or damage to any person who claims that he or she is a beneficial
owner of the land or interest from which that rent or other consideration arose and has not received his or her share thereof from the agent or agents but nothing in this Act prevents any such person prosecuting a claim for his or her share against the agent or agents.
B. By operation of Law customary land leased becomes public land. As it becomes public the Land Titles Court and Land Titles Court of Appeal have no jurisdiction.
The newly declared public land is registered as freehold land under the LTRA 2008 and all traditional aiga land rights are destroyed.
Paragraph 38 of the Lefaga Decision,
`With respect, the LTC [Land Titles Court] is not a Court which is competent to terminate duly granted leases of customary land. Once this lease was granted, it became a lease of public land according to section 11 ACLA. As a lease of public land by operation of law, the Minister becomes trustee for the beneficial owners. It is a lease which in accordance with section 25 of the Land Titles Registration Act 2006 (LTRA) must be endorsed with a certificate of correctness and registered in accordance with section 26 of the LTRA. This removes such leases from the jurisdiction of the LTC and places them within the jurisdiction of the Supreme Court.
Result: Paragraph 39,
In terms of the 2013 decision, the LTC at first instance cannot then make a decision to revoke, cancel or otherwise deal with the lease. Its decisions are limited to making declarations about the parties’ rights or otherwise to any title, name or customary land. The LTCA also with respect, fell into error in dismissing the appeal and affirming the LTC decision which revoked and cancelled the lease. The LTC does not have jurisdiction to terminate leases over customary land that are by operation of law, leases of public land.’
What Justice Tuala Warren does not consider is that S.11 of the ACLA 1965 alienates the customary land in breach of Article 102 of the Constitution and is thus void by the action of Article 2 of the Constitution and she fails to consider the effect of registration under the LTRA 2008 by sections 25, 26 & 32.
So those Aiga landowners have suffered the loss of their traditional land because it has become public freehold land.
Justice Tuala Warren does not explain in whose name the public land is registered but it is likely that it is the Minister of MNRE as the trustee. By s.32 of the LTRA 2008 the Minister becomes the owner, so must also become the beneficial owner to receive all profit.
Any customary land leased is alienated by s.11 ACLA 1965 and disputes are dealt with in the Supreme Court. An immunity is granted to government for loss by any traditional owner by s.11(3) ACLA 1965.
Registration of the lease under s.32 LTRA 2008 completes the transfer of ownership of the original customary land from Aiga to the Minister of MNRE.
This is a forbidden alienation and can be appealed as a breach of Articles 2, 14, 15 & 102.
Notice the two-step process:
Firstly s.11(1) is used in breach of Article 14 of the Constitution, transfer of property by operation of law, to alienate the aiga land rights and declare the land public.
Secondly, s.32 is used to register the public land as freehold, owned by the Minister of MNRE, subject to the sovereignty of the State.
Thirdly the State becomes the beneficial owner and the original Aiga have no right to lease payments and no ownership.
I will answer questions and provide a copy of the Lefaga decision upon request.
Maua Faleauto 23 January 2019