L.T.C. bills will incur further costs for families
The President of the Samoa Law Society, Leiataualesa Komisi Koria, says the three bills that set out to establish an independent Lands and Titles Court will create new major legal cost increases for families.
For example, in the current Court system, a lawyer cannot argue matters before the Lands and Titles Court on behalf of a family unless it is referred to the Supreme Court for an appeal.
But this will change if the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020 currently before Parliament become law.
“Under the current law a lawyer cannot argue a matter on behalf of the family in the Lands and Titles Court and that works because the matai of the family who are knowledgeable in the genealogy and customs will argue on behalf of the family on the matter,” he said.
“Under the bills, one of the key changes is that lawyers will now be able to argue matters on behalf of families before the Lands and Titles Court at First Instance. Although this is good for lawyers to create business, it’s not good for our people.”
The President explained that the Lands and Titles Court will become another Supreme Court.
“The disputes will [then] be determined on legal arguments and it will complicate matters before Lands and Titles Court when it should be focused on genealogy and customs rights,” he said.
“Obviously this is going to create added costs to families to take matters before the Land and Titles Court.
“If one family brings a lawyer to argue on their behalf it will create a need in the other family to get their own lawyer to argue on their behalf so they don’t feel they are at a disadvantage.”
Leiataualesa highlighted that some of the changes in the bills are concerning still does not address the issues raised in the 2016 Parliamentary Commission of Inquiry into the L.T.C.
“That committee made 30 recommendations about things that need to be addressed to improve the efficiency of L.T.C. and improve the quality of decisions handed down in that Court,” he pointed out. “Those recommendations and those issues are still not addressed by these bills.
“Until we have those issues addressed we will not have a Land and Titles Court that is efficient…”
The President, who has been practicing law for 17 years, said the recommendations were directed at administrative matters that don’t require changes to the law and the Constitution.
“The matters can be handled through Ministry of Justice, resourcing matters, structural matters that can be handled by capacity building and training for Judges.
“If anything these bills should’ve done is to handle recommendation from Land and Titles Court Inquiry but what we see in the bills sadly do not handle those recommendations.”
In the L.T.C. Bill 2020 one of the amendments seek to limit the number of matai Sa’o to five per family.
But Leiataualesa questioned why the Government is trying to “write our culture and traditions”
Being practiced in the villages that “does not stay the same”.
“They change overtime depending on what our people need,” he said.
“For government to write our culture into law and have it codified, its set in stone that is very dangerous that it doesn’t reflect culture amongst different villages and it also takes away the power from our people themselves to determine what our culture will be and what our tradition and customs will be.”
He made reference to a senior matai in Savai’I that had seven matai Sa’o over two decades and had lived in perfect harmony.
“What will happen once this bill is passed, that family will have to decide which two [of the title holders] can no longer have rights to the title,” he said.
“How will they determine that because everyone is equal and everyone has the same entitlement in the family?
“That is the sort of problem that will arise when this is passed because the drafter of the bill, they put in this strict limitation but haven’t thought about what happens in practice once we enforce this law.”
The President said one area that hasn’t been fully considered in the drafting of the bill is the practical implications of the bills.
What he anticipates will happen once the bills is passed, he said, there will be situations where families who already have more than five matai Sao will have to decide who will no longer hold matai title.
“There are many Samoans in Samoa that have more than 100 matai Sao at the moment, and its just very concerning what will happen to those families once the bill becomes law,” he said.
“Most likely there will be frictions and disputes in families who will hold matai Sao and we all know those kind of disputes will end up in L.T.C when it cannot be resolved in families.
“Practically our L.T.C. isn’t equipped at the moment to handle the complaints and disputes before it.
“What will happen when we have a hundred disputes that relate to matai Sao titles that’s been contested by matai families.”