Gataivai expresses customary land fears, opposes bills

The Village Council of Gataivai Savai'i has expressed fears about the alienation of customary lands, warning that the three bills before Parliament proposing wholesale changes to the Judiciary, could make matters worse.

The concerns by the Village Council are contained in a written submission they provided for the Special Parliamentary Committee holding public consultations on the Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020.

The Committee chaired by Gatoaifaana Amataga Alesana-Gidlow has rounded up its work in Savai'i. They are expected to begin consultations in Upolu next week.

But Gataivai strongly disagrees with the argument by the Government that placing more emphasis on “communal rights” will give Village Councils a stronger voice in the affairs of Samoa.

Instead, the village claims that  communal rights is only being used an excuse to open another window for the Government to take family treasures and customary lands. 

 The village of Gataivai argues that the word “communal rights” does not particularly mean the village council [faiganu'u], and it can be interpreted to stand for the public or the majority. It also pointed out that even the use of communal rights [aia tatau toatele] does not smell Samoan, and will only smell Samoan when it is replaced with village council [faiganu'u]. 

“The word communal rights can stand to include a church, an organisation and even the Government; they are the public,” Gataivai's submission argues.

“This communal right can easily defeat our customs that the legislations talk about. Our concern is if the word communal right is used, the legislation can bring into play the needs of the Government in village and family matters.

“The Government can represent the communal right and a family can be seen as the individual. The Government can also stand for the rights of the public while the village stands as the individual.” 

Gataivai says this is the reason why the village cannot accept the proposed changes fearing the concept of communal rights will be used to take over their customary lands. 

“What follows will be loss of customary lands because those under communal rights will have the authority to do so rather than the right of the village,” the village argues.  “Family treasures will be taken away because it [the bills] does not stand for the village council but the public. 

“The village stands to guard family treasures, the village gives shelter to individual families in the village and their role is to protect families in the village.” 

The village council of Gataivai insists that if the proposed law was specific and clearly stated village council “not a letter or coma in the village council foundation will be destroyed”.  

 “Therefore the proposed change should only recognise the rights of the village, nothing more,” says the village council.  

“These rights should not be opened to the public, its serious ramifications is far-reaching.” An example, used by Gataivai is if the Government wants to land from the village, the villagers can no longer keep hold of it because the Constitution recognises the importance of the public through communal rights. 

“This means the proposed change is not specific to village council,” pointed the village of Gataivai. 

“What will happen, customary lands that we are trying to protect and keep hold of will be swept away.”

The Attorney General’s Office had continuously defended the bills claiming it does not make reference to alienation of customary lands.

In previous statements from the office, it states that Article 102 of the Constitution provides that it is unlawful to make any alienation or disposition or interest in customary land. 

“The only exemption to tis rule as provided in the proviso of this Article is where an Act of Parliament allows for the granting of lease or license of any customary land or interest therein or the taking of customary land or any interest therein for public purposes,” the statement reads. 

Another major change the Land and Titles Court Bill 2020 looks to implement is restricting the number of matai Sao to register to no more than five. 

Government had argued that limiting the number of matai Sao to this figure will maintain and uphold the dignity and integrity of the matai system. 

But the village of Gataivai believes that the limitation proposed by the Government indicates that they will now rule what rightfully belongs to families.   

The village reminded Government that Government has no authority and business over matai titles. 

“Even the village council circle does not reach into family rights over their matai titles but rather stands to protect it,” states the submission. 

“Why? Because each title defines ones identity, each title has its own genealogy. 

“This means there are land and village that a matai title belongs to and there are also genealogy and myths that gave birth to each and every matai title.”

Furthermore, the village council asks the question, will the Government have remedies to resolve differences and disagreements within families over matai title. 

“If a family has ten different branches, the bestowment of titles is to keep the peace and harmony within the family,” says the village of Gataivai. 

“Who is going to benefit and who will end up picking their teeth? [if its limited to five]

“You claim [the limited titles] is due to diminishing dignity [of matai system].

“Can you resolve differences within families with “dignity” if there are not enough titles bestow…”

According to the village council, the dignity and integrity of the title is within the person that carries it.

“It is not the number that defines its [matai system] dignity but it is how the title is being carried out by the title holder that gives it the respect.” 

Lastly, the Gataivai village council also expressed concerns over the removal of appeal from the Land and Titles Court currently being deal with in the Supreme Court. 

The Constitution Amendment Bill 2020 sets up another layer of Appellant Court; the Court of Final Appeal presided by a retired Judge from the Supreme Court and others. 

The village council asked if there have been any serious defects from the current system over the years due to the structure of the Courts under the Constitution. 

The village asks where will people find refuge with matters ruled upon by the Land and Titles Court. 

“Are you aware of the next step taken by those dissatisfied people is they turn to spilt blood,” the submission states. 

“Is this not the reason why our forefathers had established this other step [Supreme Court] so that there are no disputes and disagreement. 

“If you look at how the Constitution Convention lay out these two Courts it is in accordance to our customs and traditions.”

The village argues that in the central governance the two Courts are; firstly the family circle then the second Court is the village council which makes the final decision. 

According to the village of Gataivai, if there are disputes within the family and are unable to resolve it, the families then seek refuge from the village that will make the final decision.

“This is the other reason why the village intervenes to mediate in family disputes [seumalo] because they are aware of the surroundings and know what the right decision should be. 

“To think about the current system we have of two Court systems put together, it is not a foreign concept but derives from our own culture. 

“If families and villages are not satisfied with decisions from the Land and Titles Court, they can apply for in the Supreme Court to find answers.”

 Furthermore, the village says that any family member that is dissatisfied with decisions passed down by a matai and has been refrained from finding help from the village, that matai is not righteous. 

“This is because the matai wants to rule the family alone,” the village says.

“If this is the hope and vision of the Government to separate the two Courts, they we respectfully oppose these changes.”

The village of Gataivai is one of several villages of Palauli I Falefa constituency that have expressly opposed the proposed laws. 

Recently, advocates of the three bills claim that the current Court structure established during the German administration are papalagi ways.