Rule of law and the correct interpretation of it
Re: The Lefaga decision and what it means
In response to Maua Faleauto.
It is easy to spin a story when key elements are omitted or quoted out of context.
S11 ACLA 1965 says “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.”
The key omission in all SSIG related arguments is “shall operate as if it was a lease or license as the case may be of public land”.
This quite clearly states AS IF, not CONVERT TITLE TO PUBLIC LAND.
My reading of the Lefaga decision is that the LTC recognises they have no jurisdiction over Leased customary land, as it is to be treated AS IF IT WAS A LEASE OF PUBLIC LAND, therefore under the jurisdiction of the Supreme court. Legal advisors to those that wasted their time and money bringing the matter to the LTC, who are already overwhelmed with work, need to better understand the legislation before advising such a futile course of action, unless of course they were using the opportunity to create a stir in the media and public opinion.
The decision is 100% correct, but maybe could have been better written, with “Once this lease was granted, it became as if a lease of public land according to section 11 ACLA.” instead of “Once this lease was granted, it became a lease of public land according to section 11 ACLA.”
Now don’t get the impression that I am a supporter of the government, which I am most certainly not. I am a supporter of the rule of law and correct interpretation of those laws.
If in the case of the various legislation surrounding customary lands, it has been as badly written as it is, then public discourse should force the duly elected representatives of the people to make necessary changes to address these shortcomings.
This has to be done in a comprehensive, open and deep discussion of all aspects of the laws.
I would like to see some sort of Commission into this legislation, made up of representatives of the LTC, Supreme Court, Government ministries, key public figures and possibly outside experts.
This could log and address all issues, discuss and recommend changes to legislation and processes, which given the deep feeling by everyday Samoans, could be forced into law through the ballot box.
For the record, I live on customary land where we have endured six trips to the LTC, who I respect greatly for their ability to deal with suspect claims.
We have no interest in leasing any lands, nor does any of the aiga, so this legislation has no direct bearing on my family or myself.
As a palagi, I find it incredible that leases can be used as collateral for mortgages and see this as being the biggest issue with this legislation, as it allows a bank, not a party to the lease assume control in the case of a default, resulting in a delay in the legal termination of a lease.
One would assume that for a bank to take control, they would have to pay all outstanding lease payments, costs and ensure all future payments are made.