Chiefs sound alarm about alienation of customary land

A group of matai, who opposed Government initiatives to open up customary lands to economic use, have expressed disappointment at the lack of progress in the handling of their grievances.

Fiu Mataese Elisara, Leulua’iali’i Tasi Malifa, Aiono Dr. Sapa Saifaleupolu and Lilomaiava Dr. Ken Lameta, are unhappy about the response from the Government in reviewing the harms they had highlighted in an official complaint lodged with the Asian Development Bank (A.D.B.). The group had put in a petition to stop the projects which they claimed would “alienate customary land.”

According to the group, since August 2016, after the A.D.B Board’s decided to allow a delay to its recommendation to investigate the complaint, the Government of Samoa took three years to review legislation to address the concerns that they had raised.

The review had been recommended by the Bank's Compliance Review Panel.

“The outcome of the three-year review, where the Principal Act - Alienation of Customary Land Act, 1965 is now replaced by the Leasing and Licensing of Customary Lands Amendment Act, 2019, however, is disappointing for the complainants because it fails to address key issues raised in the complaint.

“Besides, A.D.B closed its Samoa land reform-backed project in December 2017.

“By way of general reflections and comments, the complainants whilst appreciate the efforts of the government through its Committee review to integrate language to address their concerns, are nevertheless not satisfied with the outcome which in their view failed to address a number of their key concerns and fundamental points of contentions.  

“The amended legislation failed to comply with Article 102 of the Constitution.”

The latest development comes five years after the group lodged their initial complaint with A.D.B. on 26th August 2014.

The complaint objected to a series of A.D.B-backed Government reforms that, in their view, could lead to the alienation of customary lands. The complaint raised alarm about the “individualisation, fictionalisation and alienation of customary land.”

Their concerns arose from a series of A.D.B Technical Assistance projects. 

They argued that the project had been carried out 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.

 “The A.D.B wants to create a system through which a single authority figure can unilaterally lease out customary land, without consulting other members of the aiga (extended family). Under the reforms, the lease agreement could then be used by the leaseholder to access credit from a bank. But if the leaseholder is unable to repay the loan, the bank can take control of the lease, which could cover large tracts of customary land for decades.”

Five years later, the group says the Government and Parliament have failed to satisfy their concerns. This is contrary to Parliament passing of the Leasing and Licensing of Customary Lands Amendment Act 2019.

It was not possible to obtain a comment from the Government before press time. Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi was in New York last week for the United Nations General Assembly and is in Japan this week for the Rugby World Cup.

In the meantime, the group has issued a statement highlighting some of their key concerns.

Group leader Fiu Elisara said he continues to be gravely concerned.

“Despite the efforts of Government in Parliament passing the Leasing and Licensing of Customary Lands Amendment Act 2019 in June this year, the land reforms carried out since 2003 could still have the effect of individualising control over 80 per cent of land in Samoa governed under customary systems,” he said.

“This entails collective ownership by entire kinship groups, the aiga (extended family) and ultimately alienating customary lands and placing large tracts of land in the hands of banks and investors.”

Another member of the group, Leuluaiali’i, who is a lawyer by profession, said the law was deeply flawed.

“The greater issue is that of the new amendment law considered in light of the Land Titles Act 1981.. the point is that accepting the Lessor being the Minister for the beneficial owners, who of course is the Sa’o or Sa’os, depending on how many matais hold such Sa’o titles, the issues still remains that whatever happened to such Sa’o or Sa’os, for example upon death, the lease or license benefits rarely filters down to real beneficial owners,” said Leuluaiali’i.

“It is still envisaged that those Sa’os can keep the benefits for themselves by making wills that such pass on to their own heirs and children, rather than to the real beneficial customary land owners, as to include and or benefit, the extended family. There must be provisions actually written into the amendment law to prohibit this happening.”

Aiono pointed out that “all the rights accorded to the beneficial customary land owners, in my view are subordinate to the right of the Minister who approves the lease/license as Trustee.

“So, despite the inclusion, these rights cannot be exercised if they are contrary to the view/opinion of the Minister. The point is, as long as the Minister acts as the Trustee and approves leases/licenses, the beneficiary customary land owners have absolutely no rights at all. The so-called beneficial customary land owner rights are no rights at all; they are included to generate more confusion.”

Lilomaiava added: “I like the strong language inserted to try and protect customary land from alienation… but I'm not a lawyer so I don't know if it's bulletproof, and I need to be clear the intent matches the outcome.”

The group maintains that despite the new laws, there is a high risk that benefits will flow not to local communities, but to foreign investors and national elites.

“Meanwhile, members of our aiga will face dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.”

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