The Land and Titles Court (L.T.C.) would have power to declare any land to be customary land, including existing freehold land and public land, if three bills before Parliament become law.

The proposed change is one of several amendments in the Lands and Titles Court Bill 2020 that expands the scope of authority for L.T.C. Court to determine the boundaries of land and even declare them customary land. 

The President of the Samoa Law Society, Leiataualesa Komisi Koria, has cautioned that the amendments will potentially extend to changing the status of public and freehold land. 

Leiataualesa said there is already a system under the law where the status of land can be determined established under a Lands and Titles Investigation Commission. 

The senior lawyer, who has been practicing law for 17 years in Samoa, said the current system works well and is based on clear guidelines to determine if land is freehold or customary in nature. 

“We have no evidence that [the current system] doesn’t work,” said Leiataualesa in an interview with the Samoa Observer. 

He said the proposed fix from the Government in its L.T.C. amendment bill would give the Lands and Titles Court power to determine land to be customary land.

“It’s very dangerous when we have a situation [in which] there is a customary land that borders around public and freehold land,” the Society’s President explained. 

“Because if boundaries determined by [the] L.T.C. go over the boundaries and encroach into freehold land and public land then obviously people who own that land, their rights are going to be infringed. 

“The powers now given to L.T.C. to declare customary land [would be] extended to freehold land and public land.” 

A former legal Manager for the Ministry of Customs and Revenue, the lawyer said the proposed legislation has gaps on proper guidelines on how the L.T.C. should reach determinations on such issues. 

Another provision in the proposed L.T.C. Bill 2020 allows the Court to determine the boundaries of customary land and carry out surveys on its boundaries. 

But Leiataualesa has warned of situations in which the determination of customary land which borders freehold land. If the L.T.C. decides the boundaries of the customary land should extend to freehold parcels of land that person will lose out. 

“Freehold land should not be the jurisdiction of the LT..C.; however, these amendments give this L.T.C. that power,” he said. 

“It creates a scenario where the Supreme Court may be at odds with the L.T.C. if the freehold landowner decides to enforce her private rights and determine the boundaries of her land through the Supreme Court.”

The Law Society President, who is a founding member of the Samoa Victim Support Group, argues that freehold land issues should not be dealt with in the L.T.C. 

In a scenario in which a civil case brought by the owner of a parcel of declared freehold land was affected by a verdict delivered in the L.T.C., Leiataualesa said the question would be which decision takes precedence. 

The President of the Samoa Law Society urges the Government to withdraw the proposed legislation that the legal fraternity claim would breach Constitutional rights and divide the judiciary into a "two headed" justice system.

The three pieces of legislation involved are the Constitution Amendment Bill 2020, L.T.C. Bill 2020 and Judicature Bill 2020.