About the Government’s response to the issue of customary lands
Re: Alienation of customary lands fears dismissed (Samoa Observer 24/02/2018)
“But Samuel replied: “Does the Lord delight in burnt offerings and sacrifices as much as in obeying the Lord? To obey is better than sacrifice, and to heed is better than the fat of rams.” (1 Samuel 15.22).
That is a relevant message from the Scripture Mr. Editor for all of us Samoans while we are still dealing with the same old issue about our customary lands at this part of the journey in the beginning of this year.
That same message is a great reminder for Teleiai Dr. Lalotoa Mulitalo Seumanutafa (Executive Director of the Samoa Law Reform Commission), the Attorney General Lemalu Hermann Retzlaff and Prime Minister Tuilaepa in relation to the L.T.R.A 2008, the C.L.A.C 2013 (Customary Land Advisory Commission Act 2013) and our customary lands.
There are two sides of the truth about the L.T.R.A 2008 and the C.L.A.C 2013.
The first side is that the L.T.R.A 2008 and the C.L.A.C 2013, they were both originated from the A.D.B (Asian Development Bank) but not from the Constitution of the Independent State of Samoa. The second one is that the L.T.R.A 2008 is not about freehold lands only.
The findings of the C.R.P (Complaints Review Panel) of the A.D.B provide us the truth that all activities that have been conducted and performed by our government and A.D.B for the L.T.R.A 2008 were all about customary lands.
That means, Prime Minister Tuilaepa and Teleiai Dr. Lalotoa Mulitalo Seumanutafa, they have put money before the people of Samoa. They have chosen to put money first and put people last.
They have chosen to obey the A.D.B (Asian Development Bank) because of money.
When the findings of the C.R.P (Complaints Review Panel) of the A.D.B exposed the truth as mentioned above, the Prime Minister and Teleiai Dr. Lalotoa Mulitalo Seumanutafa denied it. According to Teleiai Dr. Lalotoa Mulitalo Seumanutafa, ““Governments seek the best way forward for the development of their own countries,” she said. “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.”
What she says above is not about freehold lands.
They are about customary lands and what she says about customary lands is not what the Constitution says about customary lands. The instruction in Article 102 of the Constitution forbids the person known as [any person] to make any alienation and disposition of customary lands.
Article 102 – “It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:”
The word [any person] is referring to all Samoans. If Samoa wants to make any alienation or disposition of customary lands then all things must go through the person known as [any person] but not through A.D.B or money or transaction or land. Not only that but also, Samoans need to follow another instruction in Article 109 in order to allow [any person] to make any alienation of customary lands.
Furthermore, according to Dr. Lalotoa Mulitalo – “She noted that prior to 2008, a series of consultations were undertaken on the Land Titles Registration Bill 2006, 2007 until 2008 and enactment. The consultation was led by a Cabinet appointed Commission headed by late Rev. Oka Fauolo. They were carried out with the Samoa Law Society, the Judiciary, the relevant Government Ministries, the private sector and the public.”
I have some questions Mr. Editor for Dr. Lalotoa Mulitalo about consultations because she was not specific about consultations.
1) If L.T.R.A 2008 is only about freehold land (4% of lands in Samoa) then why touch customary lands? Why did she talk about customary lands and Article 102 of the Constitution that is about customary lands if L.T.R.A 2008 is about freehold land? Article 102 is not about freehold lands.
If L.T.R.A 2008 is about freehold only then why did they make plans to develop customary lands instead of freehold lands? Why did they waste so much time to carry out consultations on customary lands (81% of lands in Samoa) if L.T.R.A 2008 is about freehold land?
2) If L.T.R.A 2008 is only about a 4% of land (freehold land) then why did the government spend almost ten years to establish L.T.R.A 2008? More than 50% of Customary lands in the village of Puipaa were taken by Germany by force have already became as freehold land and is currently owned by the current Attorney General and his family.
Are there any economic developments according to L.T.R.A 2008 for those freehold lands? What about all other freehold lands in Samoa? Did the late Rev. Oka Fauolo and the government team that worked with Oka Fauolo consult the Attorney General’s family and owners of other freehold lands according to L.T.R.A 2008?
3) If consultations that have already taken place were all about leasing of customary lands then why? The leasing out of customary lands is already allowed by the Constitution of Samoa so there is no point of those consultations? In other words, there is no need for them to carry out any consultations for leasing of customary lands because leasing is already permitted.
Consultations can only be carried out through Public Referendum for “selling” and for “mortgaging” of customary lands because both “selling” and “mortgaging” are prohibited in the Constitution of Samoa.
4) If consultations that have already taken were all about “mortgage of lease over customary lands” then Dr. Lalotoa Mulitalo must show us an evidence of a “Constitutional Amendment” according to Article 109 of the Constitution of Samoa in order to allow mortgages on customary lands?
Consultations for customary lands can only be carried out on the basis of sale and mortgage if Samoa wants its customary lands to be sold and mortgaged. Because there were consultations, so where is the evidence of an approval from the Public referendum if Dr. Lalotoa Mulitalo was referring to public consultations as Public Referendum? Dr. Lalotoa Mulitalo must show us an evidence of an approval from the Public referendum and an evidence of an approval of the two third (2/3rd) majority of Parliament?
5) If there is no evidence at all then what is the reason and the purpose of consultations that they have already done about our customary lands?
6) If there is no evidence at all then why did they allow mortgages on customary lands in L.T.R.A 2008 and C.L.A.C 2013?
7) If there is no evidence, is that the meaning of what she said about the interpretation of laws - “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?”
I will continue this tomorrow.
Nanai Malonuu Lealaiauloto Nofoaiga