About the Government’s response to the issue of customary lands. Part II
If there is no evidence from Teleiai Dr. Lalotoa Mulitalo Seumanutafa, the Attorney General and the Prime Minister, then the only reason and purpose why they have carried out those consultations in the first place was because of the programmes and plans of the A.D.B.
I have some more important information as laying out below from the Complaint of the four wise Chiefs of Samoa and from the findings of the C.R..P (Complaints Review Panel) of the A.D.B for Dr. Lalotoa Mulitalo, the Attorney General and the Prime Minister in relation to the consultations about our customary lands.
“35. Public consultation sessions that have been held were more like information sessions and did not solicit a range of views and opinions. These consultations occurred through the leadership of the Chairman of the National Council of Churches, which was not conducive to meaningful consultations because of the high degree of reverence to the church and respect for leaders, whose views people do not wish to directly oppose or challenge.”
“1. CRP reports that as of 22 March 2017, 12 community consultation meetings were held covering over 230 villages including about 2000 people (1%) of total population and a further two planned community consultations were expected in April. It added that all consultations were fully documented. As complainants, we again stress that the 1% of total population ‘consulted’ in the CRP report fails miserably the test for ‘meaningful consultation’ which is a major component of our complaint. We request that the records of the ‘fully documented’ consultations be shared with us for our information as we expected and further in respect of the CLAC assurance in its letter to us of 10 March 2017 stating that ‘...a summary of response to key issues will be publicly released and I would be happy to send you a copy...’ To date, we have not seen any public release of the said summary of response let alone share copies with ourselves as promised.”
In addition, the following quotations are some of the facts about our customary lands from the Complaint of the four wise Chiefs of Samoa that was lodged to the highest level of governance and grievance mechanism of A.D.B (Asian Development Bank) through the CRP (Complaints Review Panel) on 29 August 2014. The four wise Chiefs of Samoa are Leuluaialii Tasi Malifa, Lilomaiava Ken Lameta, Dr. Telei’ai Sapa Saifaleupolu and Fiu Mataese Elisara.
Complaint (Two paragraphs below / para 12 & para 23) http://www.inclusivedevelopment.net/wp content/uploads/2014/08/Samoa-matais-complaint-to-ADB-AM-FINAL.pdf
“12. A 1966 Amendment to the Act empowers the Minister of Lands, Surveys and Environment to grant a lease over customary land “for an authorized purpose approved by the [same] Minister” without the permission of the landowning group. Under ADB-driven reforms, the Act has now been further amended to legalize mortgages over leases of customary land granted by the Minister. This amendment, with undeniably fundamental implications for customary land tenure, was snuck in as a final provision of the Customary Land Advisory Commission Act (2012), which otherwise has no direct relevance to the 1965 Act. With the powers vested in the Minister already susceptible to significant risks, these reforms allowing leasehold mortgages - without any consultation whatsoever with the aiga - are exceedingly imprudent. In addition to destroying our time-honoured customary system of social welfare, the reforms expose land transactions to manipulation and corruption, as has occurred in the similar Special Agriculture and Business Leases (SABL) system in Papua New Guinea.”
“23. Finally, we wish to highlight that the ADB-backed reforms appear to be in breach of constitutional protections of customary land. Article 102 of the Constitution prohibits the alienation or disposition of customary land or any interest in customary land. This includes prohibition of sale or mortgage of customary land or interests in it, and prohibition of land or interests in it “being taken in execution or be assets for the payment of the debts to any person on his decease or insolvency.” While Article 102 allows leasing of customary land, it prohibits alienation or disposition of the land from its rightful owners: the aiga – the entire kin group. The set of ADB-supported reforms that empower individual matai to enter into leases with outsiders and allow for the use of those leases as collateral to access credit violates the spirit and the letter of this fundamental constitutional provision. By virtue of Article 109 of the Constitution any amendment to Article 102 requires the approval of over two-thirds of the valid vote in a public referendum, in addition to the usual two-thirds support of Parliament. The importance of the protection of customary land tenure to the Samoan nation cannot be understated. Nonetheless, the ADB-supported reforms attempt to undermine and erode these Constitutional protections. Indeed, they violate the whole fabric upon which the Framers of the Constitution adopted Article 102 and doubly entrenched this protection of customary lands through Article 109.”
The CRP’s (Complaints Review Panel) findings according to the four wise Chiefs’ Complaint: http://www.samoaobserver.ws/en/28_09_2016/local/11957/Complaint-from-matai-group--about-customary-land-upheld.htm
“Para 15 vi – CRP finds that as a result of the three TAs of project funded by ADB, as well as advice, recommendations, draft Bills, and consultant papers developed and provided, the government enacted the Land Titles Registration Act 2008 which introduced for the first time in Samoa, the Torrens system of land title registration. This LTRA required leases and licenses of customary lands granted under Alienation of Customary Lands Act, to be made under LTRA, but registration of these in the name of the Minister undermines common ownership of customary lands, and concern that the Torrens system which conveys ‘indefeasibility’ title or interests on registration is incompatible with customary land ownership attributes, practices and principles. This inconsistency arises because owners of customary lands are ever changing whereas the owners of proprietors under the Torrens system is not. This paragraph makes reference to concerns of complainants supported by academic experts such as Ruping Ye and journal articles that analyze the legal effect and impact of the Torrens system through LTRA in Samoa.”
“Para 15 vii – the ADB support to the government also enacted the Customary Lands Advisory Commission (CLAC) through the CLAC Act 2013 to promote the greater economic use of customary lands for the development of Samoa. A consequential amendment in the last section of CLAC Act enlarged the scope of leases and licenses of customary lands and amend the ACLA by extending the meaning of ‘an interest’ in customary land lease or license to include “mortgage of the interest of lease or license” and required the process of registration and discharge of mortgages in the LTRA to be applied to such mortgages! The use of leasehold rights over customary lands as a collateral to raise funds through a secured loan was new to Samoan customary land laws!”
“Para16 – address the history of Samoan land reforms concerning customary lands where government of Samoa and ADB worked very closely and all three Phases I, II and III built on each other since 2003 as listed in the ADB website under Samoa Country Strategy and Program Update 2004-2006 to follow from exploratory work under Component 4 of ADB Small Business Development Project.”
“This supported a Working Group on the economic use of customary lands that reported to Cabinet recommending activities to promote economic use of customary lands. ADBs Phases I, II and III were to assist the government to implement Cabinet’s decision where amongst the expected outputs were “amendments to Alienation of Customary Lands Act 1965”, stakeholders consultations, and drafting of amendments to legislation relating to customary lands with the specific purpose of “encourage the economic use of customary lands in Samoa”.
“Para 17 – Phase I completion report lists successful outputs as in para 16 above and proved that ADB and government of Samoa collaborated closely to develop the draft amendment Bill and to have it adopted by Parliament”
“Para 18 – Phase II successful outputs listed Customary Lands Advisory Committee established through the CLAC Act 2013, and the Alienation of Customary Lands Act 1965 amended to allow the mortgage of customary land leases. The 2013 amendment enacted a legal framework to enable the mortgaging of leases over customary lands and recommendations in the report state “Whilst the use of customary land as collateral for mortgages is still prohibited under Article 102 of the Constitution of Samoa, the mortgage of leasehold interests over customary lands is now possible under Section 15 of CLAC Act 2013. To support the mortgaging of leasehold interests over customary lands, there is a need to put in place an appropriate legal framework that protects the rights of the mortgagors, mortgagees, and customary land owners…”
“Para 19 – Phase III report A functional Legal Working Group (LWG) is established and given that legal framework in place to allow mortgage of customary land , CLAC will work closely with the Banking Association of Samoa through this LWG to discuss further actions required to enable commercial banks take advantage of this framework and accept customary land leases as collateral”
“Para 20 - It is clear that ADB has been closely associated with the government of Samoa in a series of activities since 2003 and in all Phases I, II and III to develop the relevant concepts, draft laws, establish and develop capacity of relevant institutions under these laws, and to advocate the benefits of new laws allowing for leases and mortgages of leasehold interests over customary lands, and is continuing under Phase III where ADB is supporting government of Samoa to develop further legal reforms to facilitate the ability to offer customary land leases as collateral to financial institutions.”
“Para 22 – This is a key finding of the CRP in terms of the ADB Management response that the legal reforms enacted by the Samoa Parliament are sovereign decision of Samoa thus cannot be ascribed to activities of ADB-funded projects. CRP disagreed with this position of ADB Management as in every ADB-funded sovereign project, the implementing agency is a government agency and all such projects seek to respect the sovereignty of borrowing countries. In this context the causal link between ADB’s project activities and the harm to complainants and affected customary land owners is always through a government implementing agency. CRP views that ADB Management argument that the laws were passed by Parliament and therefore there is an interruption in causal link, runs contrary to the very foundation of the Accountability Management Policy (AMP). The CRP confirms that the complainants grievances is that ADB’s non-compliance with its own policies and procedures have resulted in the stakeholders not being adequately informed or consulted in a meaningful manner causing likely harm to them and affected customary land owners from the resulting ADB advice, draft Bills and activities, and CRP accepts these matters as squarely fall within its purview in its compliance review and of the Accountability Management Policy (AMP).”
“Para 25 - CRP stated there is prima facie evidence to suggest CLAC itself recognize the gaps in the current laws enacted as a result of activities under Phases I and II of the project. However, CRP cannot understand why legislative revisions CLAC plans to present to Cabinet and Parliament were not considered and proposed at the time when the CLAC Act 2013 was passed to enable mortgaging of leasehold interests over customary lands. Instead, an issue that ADB itself considered “sensitive” from the start ended up in legislation that did not address those concerns and resulted in creating the uncertainties in customary land ownership rights. When considered as a whole, CRP states there is prima facie evidence that ADB non-compliance with information dissemination and meaningful consultation with stakeholders as required by ADB policies and procedures, resulted in ADB failing to address their concerns in a timely and meaningful fashion which has directly led to policy and legal changes that are likely to cause material harm to complainants and customary land owners in Samoa.”
“Para 26 - In concluding, CRP finds there is prima facie evidence that there is adequate causal link between the likely harms referred to in Section B above and the non-compliance of ADB projects to their own ADB policies and procedures. There is further prima facie evidence that the ADB projects have resulted in ADB providing government of Samoa with draft Bills, advice, capacity building activities and advocacy, the content of which might have been different and might have addressed complainants and customary land owners concerns had there been adequate and meaningful consultations during all three Phases of this ADB-funded projects for Samoa.”
“On the complaint under the Samoa Agribusiness Support (SABS) Grant, whilst we have no objections to the objectives of this grant, we as complainants continue to argue that this will likely expand the scale of collateralized lending to businesses using customary lands as primary input. Whilst the three Commercial Banks have written to CRP that they have not taken any leases of customary lands as collateral for the loans and financial facilities granted under this SABS up to now, and will not be taking any such leases as collateral for future loans and financial facilities under SABS, there is evidence in respect of ‘companies’ engaged in leasing of customary lands amongst other concerns that only time will tell and to be the judge in the future of what we as complainants allege now.”
Before L.T.R (Lands and Titles Registration) became an Act in 2008, it went through a process, which was the A.D.B’s process.
There were consultations about customary lands but they were done according to the A.D.B’s process. So it was not a fault of the late Rev. Oka Fauolo.
It was the fault of Prime Minister Tuilaepa and Dr. Lalotoa Mulitalo Seumanutafa and it seems to me from there, they were hiding the truth about that whole situation from the late Rev. Oka Fauolo.
They have used Oka Fauolo in politics in order to get what they want.
Nowadays, they have used the name of Oka Fauolo so many times as a cover up of their failure to conduct the establishment of the L.T.R.A 2008 in the appropriate way, the legal process as lay out in the Constitution of the Independent State of Samoa.
Nanai Malonu’u Lealaiauloto Nofoaiga