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Bills retroactive powers questioned

Two matai who have spent most of the last century debating issues of land rights with Government hope the proposed changes to the Land and Titles Court will be an opportunity for “restorative justice” if their changes are retroactive.

In a wide-ranging letter to the editor summarising their intended submission to the Parliamentary Committee hearing submissions on the Bills, Fiu Mataese Elisara and Aiono Telei'ai Sapa Saifaleupolu ask whether the new Bills on the table would apply retroactively. 

Fiu said the Supreme Court’s right to adjudicate over matters of breaches of Constitutional rights when they are embroiled in Land and Titles Court decisions needs to be looked at more closely, and a new structure to the system could answer urgent questions.

A landmark Supreme Court decision in 2018 that ruled the L.T.C. was not able to rule on customary land leases because once leased the lands were classified as ‘public,’ was extremely disappointing for Fiu and his colleagues, who hope the new Bills may be able to reverse or prevent repeats of that ruling.

The case concerned customary land in Matautu, Lefaga, where the Return to Paradise Resort sits. The Land and Titles court, and its Appellate Court (L.T.C.A.) had both ruled to revoke a customary land lease made to the resort in 2012 and held by the Minister of Natural Resources and Environment.

The L.T.C. cancelled the lease in 2013 and the L.T.C.A. confirmed that cancellation was valid in 2014.

But the lease-holder took a complaint to the Supreme Court, demanding they were not fairly heard during the first two L.T.C. trials, and their complaint was upheld.

More than that, the Supreme Court Justice presiding, Justice Tafaoimalo Leilani Tuala-Warren, confirmed the L.T.C. may not rule to revoke or cancel customary land leases, as they are classified as public land leases, and declared the two previous rulings as having been made beyond the jurisdiction of the court (ultra vires). 

Under the Land Titles Registration Act (L.T.R.A.) 2008, a lease of customary land needs to be endorsed with a certificate of correctness and registered under the Act. 

Fiu said this example shows why the L.T.C. needs to be separated from the Supreme Court, and that the mandate of the L.T.C. to rule exclusively over lands and titles needs to be honoured. 

“Customary land is very special and sacred to Samoans. Land is our life for it is our God-given inheritance […] Samoans have always believed that land dealings undertaken by government without the agreements of the customary land owners are not recognized as valid.”

He said he and his colleague Aiono intend to sit with the Parliamentary Committee to detail their concerns about this decision and how the L.T.C. Bill could address it and how the Bills plan to “equitably and justifiably” marry L.T.C. and Supreme Court decisions.  

“We want clarification on how the proposed amendments to the Constitution Bills are able to deal with issues of cultural and community rights adjudicated under L.T.C. jurisdiction versus [the criminal and civil courts] adjudicating for the Resort under fundamental rights under Part II of the Constitution.  

“The Lefaga decision […] will require some clarification by the Committee to clarify options for retroactive applications of these proposed Bills and Constitutional amendments if/when approved by Parliament.”

Fiu and Aiono state that the decision of the Supreme Court “renders meaningless” the collective ownership and rights over customary land by Samoan communities.

But the two hope to see a genuine effort for meaningful consultation across Samoa on this decision, as it would have far reaching impacts.

They argue that the three Bills have been tabled at the wrong time, when the world and Samoa’s attention is on the global COVID-19 pandemic, when the economy is suffering and people cannot give full focus to the proposals.

“The questions we have asked in relation to the independence of L.T.C. under Part IX versus the Supreme Court and civil and criminal justice jurisdiction on Fundamental Rights under Part II of the Constitution require considerable discussion, debate, and indeed time for meaningful consultation for clarity as it is fundamental to the concerns we have harboured and advocated for more than 20 years to Government, World Bank, Asian Development Bank and others pushing interests of rich individuals and corporate investors on use, security and ownership of customary land.”

Among their submission to the committee, they refer to when the L.T.R.A. 2008 was drafted, written and passed behind the “distraction” of the national switch to right-hand drive, which had parts of the country protest against it.

“We recall clearly the same Human Rights Protection Party (H.R.P.P.) approach, methodology and process in 2008/2009 where the Right Hand Drive push by the H.R.P.P. government that became effective at 6am on 08 September 2009, saw the pre-occupation of Samoans on this fully diverting attention for two years from raising objections to the very controversial and un-Constitutional L.T.R.A. 2008 that became Law on 17 June 2008 ignoring the pre-requisite requirements of Articles 102 and 109 of the Samoa Supreme Law,” Fiu and Aiono said.

Another major case they offer as one that would be affected by the proposed Bills is the decision to take customary land in Salelologa for public use to develop the township in 2004. 

In 1997 under the Taking of Lands Act 1964, the Government began the process of claiming 2,872 acres of customary land in Salelologa. But many disputed how the land was valued and compensated for, and whether the matai who signed an agreement to hand over the land for $4 million had the authority to do so.

In December 2004 a judgement Supreme Court ruling the $4 million agreement was binding was overturned by the Court of Appeal and allowed the villagers to have another opportunity to change the value of the compensation, and to have a larger group of matai back any new agreement.

Eventually much of the land was returned to its customary owners. 

“There is merit in terms of the Court of Appeal decision that said no, the signature of one person does not represent the signatures of the villagers,” Fiu explained, highlighting the Fa’aSamoa attitude towards the rights of the collective over the rights of the individual.

“That appeal process did not support the initial view that the signature of the Tu’ua represented the whole village.

“We ask: will the H.R.P.P. government use these proposed amendment legislations to revisit its claim on the [returned] 2,439 acres of customary lands returned to Salelologa under decision of Court of Appeal on 17 December 2004? 

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