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Samoan scholars want L.T.C. Bills withdrawn

Samoan scholars living abroad want the three bills which would reform the Land and Titles Court, the Constitution and the Judiciary withdrawn and returned to the drawing board, and offer their expertise in redrafting them.

In a submission to the Special Parliamentary Committee tasked with gathering the public’s voice on the controversial legislation, the Samoan Scholar’s Network asks for the bills to be withdrawn, for a custom law jurisprudence to be developed, and for their voices to be heard on the matter.

The nearly 14-page submission, signed by 17 Samoan academics based in New Zealand, Australia, Fiji and Hawaii, details the group’s opposition to the bills and describes how their collective expertise could be put to use to achieve the desired outcomes.

Signatories and founders of the Network – Lupematesila Dr Melani Anae and Tamasailau Dr. Suaalii-Sauni – told the Samoa Observer that though they may not be on Samoan soil, but they feel a deep commitment to their country.

“There is no question about our tautua (service) and our love and commitment to Samoa,” University of Auckland Senior Lecturer in Pacific Studies Lupematesila said.

“Please, include us in these important conversations about the future of Samoa [...] we may not be on the land but we are of the land. We are the land.”

She said Prime Minister Tuilaepa has been fostering a culture of fear against Samoans outside Samoa, but she wants it known that there is nothing to fear.

“It’s that whole impression the Prime Minister has about Samoans i fafo (overseas) that they are just noisy, that they should be there to be seen and not heard.

“I always think about my parents [… who] came to New Zealand with the intent of educating their children, and I knew it wasn’t to get a PhD or the epitome of palagi education, it was so we would engage with our fa'aSamoa, and get jobs and income that would feed Samoa, look after Samoa.

“That is why we take on matai titles. We take them on for the love of our parents and the Samoa they brought with them to New Zealand.”

The submission to the Special Parliamentary Committee, led by Member of Parliament Gatoloa’ifaana Amataga Alesana-Gidlow was submitted in June, but the scholars have not been invited to speak directly to their opinions over a conference call or similar.

In their letter, they wrote to Gatoloa’ifaana that their submission is a gift and a gentle prayer from proud heirs and matai of Samoa. They include two prayers, from Reverend Upolu Vaai and Revered Alec Toleafoa in their closing. 

It is a submission in two parts. The first examines the positive and negative impacts of the three proposed bills.

The second asks what role the global community of Samoan academics can play in realising the Government’s hope of making the Land and Titles Court a more ‘Samoan’ one, by helping develop a robust custom law jurisprudence the court can use, as it currently has none. 

Lupematasila said she hopes their submission can offer another perspective to people who are getting “a one sided view” from the Committee as they make their way around the country.

“What they have at the moment, from what I understand, is [the Committee] going from village to village putting forward the Government’s perspective; that is the impression we have here.

“We have a chance to lay out our side of things in terms of what we think is best for Samoa. 

University of Auckland Associate Professor of Criminology, Tamasailau Dr. Suaalii-Sauni, said the knowledge base is there and ready to participate in changes to the Land and Titles Court “at the invitation of Samoa."

“It’s a crying shame if the intellectual pool and capacity that is available to Samoa is just ignored, side-lined, or dismissed,” she said.

“As a scholar's network, we are committed to assisting Samoa in the development of a body of transdisciplinary scholarship or research that rigorously informs, in culturally nuanced ways, the development and implementation of projects of mutual interest in custom law, legal and educational pluralism, and politico-economic sustainability – including transnational matai leadership,” the submission states.

The scholars have a serious problem with the proposed laws having no clear answer as to what legal basis a new Land and Titles Court, severed from not only the Supreme Court but its common law basis, would have.

They say the explanatory memoranda attached to the three bills only further muddy the waters, using hotly contested and not fully defined terms like legal pluralism and postcolonialism.

“If you are going to put on the table the notion of legal pluralism and have absolutely no mention of what that means, apart from a reference to postcolonialism which in itself is problematic, then that is a clear indication that the foundation on which these bills are being put in place is so unsteady,” Dr. Suaalii-Sauni said.

“It’s just hugely problematic and irresponsible for us sitting outside to not say anything.”

In their submission, the scholars argue that the changes the Government appears to want, do not need constitutional amendments nor judicial reforms.

Ordinary legislation could “easily empower” parties to being the research and review required to develop a custom law jurisprudence, which would arm the existing Land and Titles Court to better serve its people.

“While there is not yet the comprehensive body of written knowledge that Samoan custom law experts would readily identify as constituting Samoa’s custom law jurisprudence, there is however sufficient published academic scholarship available that identifies and describes key custom law principles to make a good start towards this,” the submission states.

“We note that in order to progress any real efforts to develop Samoa’s custom law, there is first a need to respectfully understand and address: (a). any continuing tapu (taboo, prohibitions or sacred covenants) aiga may have over their customary knowledges; and 2. the impact of concepts such as “e tala lasi Samoa” (which suggest a plurality of legitimate historical accounts in aiga customary knowledge) on the development and framing of a national custom law; and 3. the accessibility and inclusiveness of this custom law to all suli regardless of where they reside.”

Dr. Suaalii-Sauni said the bills themselves, while imperfect, demonstrate a profound desire for this kind of body of work.

“It’s not by accident that you have a situation where Samoa is now trying to develop a better grip on the relationship between fa’asamoa, aganuu, agaifanua and the introduced legal and political system,” she said.

“It’s the natural progression of engaging more deeply and deliberately with the ideologies of being a democratic nation state that has taken on these principles of universal suffrage.

“The Prime Minister and the Law Reform Commission has probably unwittingly brought the question by introducing the bill and creating the kind of scrutiny and backlash from people outside like ourselves […] I don’t think they necessarily foresaw the kind of backlash that would come of this.”

Land and Titles Bill 2020, the Judicature Ordinance Bill 2020, and the Constitutional Convention Bill 2020 have been under constant scrutiny since they were tabled in Parliament in March. 

They have passed their first and second readings, and likely would have gone on to pass the third reading and become law already, had public criticism not prompted a nation-wide hearings process, run by Gataoloaifaana and her committee.

Lupematasila, who recently published landmark research on the experience of matai living outside of Samoa, said the Constitution already contains all that is needed to create the Samoa that the bills purport to envision.

“The constitution does not need to be changed, it is all there. We need to have another look at it, and that is what the submission spells out,” she said.”

Other issues the submission highlights include the provision to limit families ability to appoint matai sao to just three per family, which they say goes against the customary understanding that it is only the family (aiga) who can order such limitations.

“In a legally plural society where custom law is recognised as a legitimate source of law in and of itself, the centralisation of government and creation of a nation-state system of law and order and resource distribution would not take that right away,” the scholars write.

“Indeed, it would run against the very logic of a legally plural society to attempt to do such a thing.”

They also argue that Samoa, as a country working to develop its economy, needs to maintain good relationships with the international community.

This work comes with implementing policies and laws that help develop Samoa’s place in the world but also protect its customary measina (treasures) through a robust legal pluralism, they write.

“By asserting the creation of a legally plural society, where custom law is to be fully recognised within or alongside state law, there arises a responsibility to not only develop a formal custom law jurisprudence but also a formal public education and social system for all – from early childhood through to adult tertiary level – where all learn and engage in the constant assessments and reassessments of custom and its relevance to contemporary Samoan society,” the submission states.

“We recommend that proper recognition be given to the equal place of custom law in Samoa’s legal system and that proper education and training support is provided for all suli, young and old, public servants and professionals, inside and outside of Samoa on key aspects of Samoa’s custom laws.

“This will require whole of government, whole of village, and whole of aiga support strategies.”

Lupematasila and Dr. Suaalii-Sauni are the co-founders and leaders of the Samoan Scholars Network. 

This is the submission of the Samoan Scholars Network to the Special Parliamentary Committee.


Honourable Gatoloa'ifaana Amataga Alesana-Gidlow
Chairperson
Parliamentary Select Committee for Public Submissions on the:
Land and Titles Bill 2020
Judicature Ordinance Bill 2020
Constitutional Convention Bill 2020
Sogi, Apia
SAMOA

24 June 2020

Afioga e, we extend to you our deepest regards and respect,

Our attached submission is both a gift and a prayer offering. It is a meaalofa – an expression of our alofa – for Samoa from Samoan Scholars currently working within a university or tertiary institution outside of Samoa, i.e. in Aotearoa New Zealand and beyond. It is also a fa’anōnōmanū – a gentle prayer – that seeks your and our ancestors’ forbearance as we presume to gift this meaalofa to you in your search for God’s wisdom, for truth and balance.

Our network is newly formed but comprises a wide range of members from senior to mid-career to early career Samoan academics and scholars. All are proud suli of Samoa. Many are also proud matai who faithfully serve their aiga both in and outside of Samoa.

We have come together under the umbrella of this collective, the Samoan Scholars Network (“the Network”), originating out of Aotearoa New Zealand, to present a formal submission addressing two overarching questions:

1. What, in the main, are the positive and negative implications of the three bills (the Land and Titles Bill 2020; the Judicature Bill 2020; and the Constitution Amendment Bill 2020) on suli of Samoa living outside of Samoa? and

2. How can we, as Samoan suli with scholastic skills living outside of Samoa assist with the “review and research” work noted in the explanatory memorandum of the Constitutional Amendment Bill 2020 to build and/or advance the requisite knowledge base for rigorous baseline discussion and development of the intent behind the three bills?

Because of time constraints our submission is expressed in English. But we write and speak in the spirit of alofa and fa’aaloalo. We pray that our voices are heard in the same spirit. If your esteemed committee has any questions for us, please do not hesitate to make contact.

Yours faithfully; i le ava ma le fa’aaloalo lava,


Lupematasila Misatauveve Dr. Melani Anae QSO, Associate Professor Tamasailau Suaalii-Sauni
On behalf of the Samoan Scholars Network of Aotearoa New Zealand

SAMOAN SCHOLARS’ NETWORK SUBMISSION REGARDING THE SAMOA LAND AND TITLES BILL 2020, CONSTITUTION AMENDMENT BILL 2020 AND JUDICATURE BILL 2020 (“THE THREE BILLS”)

1.0 Introduction

1.1 Our Samoan Scholars’ Network (“the Network”) is a transdisciplinary group of Samoan scholars whose scholarship and/or expertise covers the academic fields of Law, Sociology, Criminology, Education, Anthropology, Art History, Medicine, Health Science, Community Health, History, Social Work, Architecture, Development Studies, Gender Studies, Pacific Studies, and Hawaiian Studies. The submission provides a list of signatories and bibliographic references below (see sections 6.0 and 7.0).

1.2 Although our Samoan scholars’ network is new in its formation, the issues the three bills have given rise to are of such a serious nature that the Network has felt compelled, notwithstanding, to organise, write and submit this formal submission to raise questions and offer commentary on the serious implications of the three bills. We are particularly concerned with the potential impact of these bills on the rights and responsibilities of suli living outside of Samoa – the Independent State of Samoa. We define suli in this context to mean those who, according to “Samoan custom and tradition” or “Samoan custom law”, have hereditary rights and responsibilities in Samoan customary lands and titles. The phrase “Samoan custom and tradition” is drawn from the Constitution but is understood here to also encompass the concepts and practices of aganuu, agaifanua, tu ma aga Samoa, and faasamoa (Vaai, 1995, 1999; So’o, 2007, 2008; Suaalii-Sauni, 2011). We find value in the phrase “custom law” and utilise it in the manner discussed by the 2006 New Zealand Law Commission report on custom and human rights in the Pacific. That is: “We use ‘custom law’ nonetheless, …because ‘custom’ or ‘customary law’ is now used universally for traditional legal systems. However, in contrast to the understanding of custom in English law, we use ‘custom law’ to refer to a system of law that is not static but subject to change” (p.46-47).

1.3 We offer this submission in the spirit of alofa and fa’aaloalo. We hope that it can add meaningful dialogue and support to parliamentary deliberations around these three bills, their intents and purposes, and particularly their readiness for implementation.

1.4 Our Network has members who despite living outside of Samoa, have deep and ongoing ties to Samoa (Keil, 2020). Our members are committed (emotionally and financially) to the wellbeing of immediate and extended family members living in Samoa. Many of our members are also matai titleholders and so have direct responsibilities to aiga in Samoa. Many are citizens of both Samoa and Aotearoa New Zealand (“Aotearoa NZ”). 1 Transdisciplinary is used here in the sense of moving beyond traditional disciplinary boundaries as suggested by Edvard Hviding (2003) in his discussion of Pacific worlds and academic disciplines.

1.5 We acknowledge that the largest group of Samoans living in a country outside of Samoa are Samoan Americans. In the most recent United States of America (“US”) census data (2010), 37.5 thousand Samoans are resident in Hawaii and 147 thousand on the US mainland. Citizens of the US are by US law currently unable to hold dual citizenship. Aotearoa NZ and Australian Samoan citizens, however, can. Aotearoa NZ records a total of 160 thousand Samoan residents in 2018. Australia recorded almost 76 thousand Samoans in 2016 (Anae, 2020). This is by no means a small number. A large percentage have dual citizenship, and many have direct and ongoing ties to Samoa as suli with interests in the customary lands and titles of their aiga. Suli rights and responsibilities to their customary lands and titles are, according to Samoan custom law – outside of death – inextinguishable. Therefore, regardless of where a suli lives in the world, they hold rights and responsibilities to any and all the customary lands and titles they can prove a legitimate suli claim to. These three bills impact directly on those legitimate claims.

1.6 A recent study looking into transnational matai has found that of those matai registered in Samoa up until 2016, two thousand and eighty-three (2083) are ‘outside of Samoa’ born, and mainly born in Aotearoa NZ and Australia. In fact, most, i.e.1736 or 83%, were born in Aotearoa NZ, the remainder – 138 or 6.6% - were born in Australia (Anae and Tominiko, 2019).

1.7 Signatories to this submission reside mainly in Aotearoa NZ, but also include Samoan scholars living in Fiji and Hawaii. We are currently affiliated to the University of Auckland, University of the South Pacific, and the University of Hawaii. What we share as a network or collective is a transnational viewpoint intent on optimising Samoan perspectives and worldviews that can inspire positive transformations for both individuals and society at large. We seek ways of being, seeing, doing, moving, reflecting, thinking and advancing that are creative, innovative and transnational, but deeply and firmly anchored in well-informed understandings of Samoan history, culture, relational identities, rights and responsibilities.

1.8 Our submission is organised in two parts. These are framed as questions: (a) What are the positive and negative implications of the three bills on suli of Samoa living outside of Samoa? and, (b) How can we, as Samoan suli with scholastic skills living outside of Samoa assist with the “review and research” work noted in the explanatory memorandum of the Constitutional Amendment Bill 2020 to build and/or advance the requisite knowledge base for rigorous baseline discussion and development of the intent behind the three bills?

2.0 What are the positive and negative implications of the bills on suli of Samoa living outside of Samoa?

“Implications” in this context are interpreted as referring to any or all potential outcomes or conclusions that can be drawn from the wording of the three bills and their explanatory memoranda.

2.1 Positive implications of the three bills

2.1.1 The explanatory memorandum of the Constitution Amendment Bill (“CAB”) sections 1.3 through to 1.6 argues that the Bill seeks to “reflect more of the Samoan context 4 inside Samoa’s supreme law”… and to “‘make the Constitution [of Samoa] a Samoan Constitution in light of today’s context” (section 1.3; bold inserted). The meaning of the phrase “in light of today’s context” is elaborated on only slightly in sections 1.4 to 1.6. On its face, the explanation suggests a positive step towards postcolonial decolonisation. Although we note that the concept ‘postcolonial’ is a contested term (Tupuola, 2014, 2018).

2.1.2 Section 1.4 argues that the Bill is a “response by Samoa” to the “challenges of ‘legal pluralism’”, which it explains is “a legal theoretical framework with features prevalent in most post-colonial societies”. It suggests that Samoa is one such society. The section notes that in reviewing the Constitutions of “all other Pacific Islands” that there are express aspirations in them “to adopt in their Constitution and laws the context of their cultures, custom[s] and traditions”. And that despite these aspirations none have achieved an appropriate ‘accommodation’ or balance in law between “customary systems” and adopted “modern western system[s]” of law. We find that the academic scholarship in this area generally supports this argument (Vaai, 1995; Brown, 1999; Mulitalo, 2013; Corrin, 2009, 2016; Suaalii-Sauni, 2017). The step taken by these bills, therefore, again, seems a positive step forward for Samoa and her suli in terms of giving due regard to Samoa’s custom law.

2.1.3 Section 1.5 connects the impetus for the three bills, and in particular the CAB, to parliamentary debates held in March 2016. Section 1.6 explains that these bills are the legislature’s response to the challenges arising out of that debate. Here the legislature rationalises that the bills are an attempt to “adopt the best of both modern principles and customary values… so that Samoan customs and usages are not lost” now and in future. The sentiment in section 1.6 is admirable. We argue that it can be adequately addressed, however, by ordinary legislation. It does not in itself warrant a need to amend the Constitution. Ordinary legislation could easily empower the Office of the Attorney General, the Ministry of Justice and Courts Administration and the Samoa Law Reform Commission to “review and research” further this aim as part of their portfolios. Indeed, it could empower all three arms of state, the whole of government, whole of village, and key scholastic institutions to work together to assist them to find the elusive formula that can achieve recognition and balance between customary and “modern western system[s]” of law. This means in effect that the CAB bill ought to be withdrawn. Without it the other two may also then need to be withdrawn, but if not then redrafted and/or replaced.

2.1.4 The potential outcomes of the “review and research” work mentioned in the CAB explanatory memorandum, could, if well-coordinated and resourced, be extremely positive for Samoa. Particularly if (a) the bills were to be put on hold or withdrawn until such work is carried out, and then revised and resubmitted accordingly; and/or (b) if the work was to involve – in the least – comparative Samoan custom law and modern law experts, leading political and social scientists, village and national leaders, and representatives from marginalised communities from both inside and outside of Samoa, working together.

2.1.5 While there is not yet the comprehensive body of written knowledge that Samoan custom law experts would readily identify as constituting Samoa’s custom law 5 jurisprudence, there is however sufficient published academic scholarship available that identifies and describes key custom law principles to make a good start towards this (Le Tagaloa, 1997; Vaai, 1999; So’o, 2008; Aiono-Le Tagaloa, 2009; Salevao, 2011; Vaai, 2011; Tamasese, 2018a; Potogi, 2015; Mo’a, 2015, 2018, personal communication 2020; Suaalii-Sauni, 2011, 2017; Sapolu et al, 2012; Meleisea et al, 1987; Meleisea, 1987, 2017; Iati, 2016; Malosi et al, 2018; Anae, 2020). Such a jurisprudence (or custom law theory) might begin by unpacking what is meant by the faasamoa, for example, explicitly noting not only how it differs or is similar to agaifanua or aganuu, but also how it or they relate to or include concepts such as “gafa”, “ifoga”, “suafa”, “eleele”, “palapala”, “fanua”, “aiga”, “tofi”, “faasinomaga”, “suli”, “sui”, “matai”, “pule”, “soālaupule”, “alofa”, “tautua”, “tausiga”, “va tapu / va tapui”, “monotaga”, “matūpalapala”, “igaga tō”, “mau”, “faavae”, “mavaega”, “suli soso’o”, “tulafono”, “felafolafoa’i”, “tuā’oi”, “matāfaioi”, “aiā tatau” and so on and so forth. But also, how it/they might differ or be similar – philosophically, historically, conceptually or in practice – to ‘western law’ concepts such as “estoppel”, “perpetuity”, “caveat”, “injunction”, “will and testament”, “easement”, “equity”, “affidavit”, “common law”, “alienation”, “in rem”, “trespass”, “lease”, “mortgage”, “statute”, “trust”, “duty”, “obiter dictum”, “ratio decidendi”, “mens rea”, “succession”, “title”, “limited liability”, “deed”, and many more.

In other words, without the focused and coordinated specialist work involving custom law experts, common law and equity law experts, political scientists and social scientists – such as linguists, historians, sociologists and anthropologists, to name a few, the much needed comprehensive custom law jurisprudence that ought to directly inform and guide the core work of the Land and Titles court will always be found wanting. In fact, the desire for the deliberate development of such a jurisprudence has been in Samoa since Independence and is implicit in the Constitution. With these bills it seems that the need to address this implicit desire more explicitly, to stop the current ad hoc approach to the development of the Land and Titles custom law system in favour of a more robust and pro-active system of development is finally being heard. UNFORTUNATELY, the bills in their current form do not give enough guidance on how this jurisprudence will in theory and in practice be able to be properly established. Moreover, without a lot more detail on how the research and review work mentioned in the CAB explanatory memorandum will be carried out or what it relates to exactly, we fail to see how the kind of custom law jurisprudence sorely needed by the Land and Titles court to carry out its justice duties, whether in the lower or proposed appellate court, will be satisfactorily achieved. This in turn makes it nigh impossible to see how any rights and interests held by suli living inside or outside of Samoa will be protected by these bills.

2.2 Negative implications of the three bills

Some of the negative implications of the bills in their current form has been alluded to in subsection 2.1.5. This section extends on those comments.

2.2.1 We note that the CAB’s explanatory memorandum seems to also provide the basis for the proposed changes to the Land and Titles Act and the Judicature Ordinances Act. The extent of the negative implications of these three bills on the rights and 6 responsibilities of suli outside of Samoa mirrors those impacting on suli inside Samoa and have already been well documented by the Samoa Law Society and the Office of the Ombudsman in their respective submissions. We fully endorse their submissions in this respect. In particular, we draw from them the following with regards to the current state of the bills:

(a) that the risk or cost to suli and their aiga of dismantling the existing justice system in favour of a system or model that is as yet undefined and not interpreted, and where strengths and weaknesses are not yet expressly identified, is too high (Samoa Law Society); and

(b) that the uncertainty created by the bills unfairly undermines the search for the kind of certainty in law needed to protect the fundamental human and custom rights of all Samoan citizens and suli (Samoa Law Society and the Office of the Ombudsman).

2.2.2 We note that the concept “legal pluralism” mentioned in the CAB explanatory memorandum has a range of different forms and meanings (Suaalii-Sauni, 2017). We note that there is also no discussion in any of the explanatory memoranda to these three bills on the preferred meaning and application of this term for these bills, not only in relation to customary lands and titles but also more widely to include civil and criminal law rights and responsibilities. The negative implications of passing into law bills founded on under-explored concepts and highly contested theoretical frameworks, such as legal pluralism, without detailed explanation is, in our view with respect, highly irresponsible.

2.2.3 While Samoa has, for perhaps understandable reasons, neglected the jurisprudential development of a formal custom law corpus, this has produced two socio-political anomalies. First are the lost opportunities this inadvertently gives rise to, to specifically train lawyers, judges, parliamentarians and public servants (most of whom receive formal tertiary level qualifications training outside of Samoa) in a custom law jurisprudence for Samoa. Training programmes that recognise, among other things, the full rights and responsibilities of suli, including those living outside of Samoa, to customary lands and titles in Samoa. And, second, are the lost opportunities to give due systemic recognition to transnational matai who serve their aiga in Samoa faithfully, albeit from outside of Samoa.

2.2.4 We note that traditionally matai sa’o were the head of an aiga, and that usually they were resident in the residence to which their matai sa’o title belonged (So’o, 2007; Tamasese, 2018b). However, over time it seems that this requirement is no longer a prerequisite for being a matai sa’o, in that a considerable number of matai sa’o now live outside of Samoa. Moreover, the proliferation of matai titles that arose in response to matai-only suffrage before 1991 and the imposition of modern living imperatives on traditional aiga expectations of who ought to be given the matai sa’o role, and how and when that ought to occur, has meant that aiga have increasingly found themselves in court contesting the fairness or appropriateness of matai sa’o appointments or acts (Meleisea, 2017). But aiga – in all its various manifestations – have, notwithstanding, consistently argued over time that the matai sa’o role, in accordance with custom law, is the sole responsibility of aiga. They and only they have the right to bestow and take away, on or from one or many, a matai sa’o role. In 7 a legally plural society where custom law is recognised as a legitimate source of law in and of itself, the centralisation of government and creation of a nation-state system of law and order and resource distribution would not take that right away. Indeed, it would run against the very logic of a legally plural society to attempt to do such a thing.

2.2.5 We recognise that as a nation state Samoa has responsibilities to its citizenry to fruitfully develop its economy. And as part of that responsibility there is a need to foster good relationships with the international community, and to train and maintain a workforce that can meet the standards of competency and professionalism necessary to engage competitively in national and global markets. This gives rise to the need to create and implement strategies, policies and laws that can develop such markets and workforces, and as well protect customary measina (from the protection of our gagana Samoa to the protection of customary land and title rights of suli). By asserting the creation of a legally plural society, where custom law is to be fully recognised within or alongside state law, there arises a responsibility to not only develop a formal custom law jurisprudence but also a formal public education and social system for all – from early childhood through to adult tertiary level – where all learn and engage in the constant assessments and reassessments of custom and its relevance to contemporary Samoan society.

2.2.6 Customary lands are still approximately 80% of Samoa’s lands. Most of this is fertile. However, notwithstanding almost 60 years of Independence, very little is actively engaged in an economic profit-making business that can service aiga, village and/or national income needs to a level where Samoa could be self-sustaining economically (Leavai et al, 2013; Macpherson and Macpherson, 2011). Samoa has relied heavily over the years on outside remittances and donor aid support to meet infrastructural needs (Anae 2020). While climatic changes have largely impacted coastal areas, there are still significant inland areas that have potential for, among other things, mixed cropping initiatives (Benson et al, 2020). This can generate the kind of income to at least sustain aiga needs. However, maximising this potential without relinquishing customary land rights is considered by many aiga to be challenging, least of all for reasons relating to aiga members living outside of Samoa. Aiga, whether inside or outside of Samoa, would need to come together to work their customary lands and to resource that work in ways that are both creative and respectful of the contribution that suli from outside of Samoa offer to such initiatives. Capitalising on aiga projects with customary lands would need support from central government and village councils to work effectively. This requires a system of customary land development that invests more in village and aiga autonomy and less in state control. Not to do this would necessitate what Meleisea Malama and Penelope Schoeffel (2015) described in the 1980s as a ‘cultural revolution’, one which Sefulu Ioane (1983) suggests can lead to further ‘turmoil in paradise’ (Anae and Tominiko, 2019).

2.2.7 We note that Samoa is a signatory to the United Nations Sustainable Development Goals 2030 (“SDG”). We support these and draw attention in particular to SDG 16 on Peace, Justice and Strong Institutions. We support the argument presented by the Samoa Law Society and the Office of the Ombudsman that the three bills negatively impacts on: 1. the smooth operation of the rule of law by putting some at risk of 8 unequal access to justice; and 2. transparency of state decision-making and public access to that decision-making; and 3. the rights of all suli, living inside and outside of Samoa, to a standard of care and a quality of information that engenders confidence in the state’s ability to protect the fundamental rights and interests of suli, whether living inside or outside of Samoa.

3.0 How can we, as Samoan suli with scholastic skills living outside of Samoa, assist Samoa with the “review and research” work required to build and/or advance the requisite knowledge base for rigorous baseline discussion and development of the intent behind the three bills?

3.1 Members of our collective are not only seasoned “researchers and reviewers” in a scholastic or academic sense, but they are also well networked in terms of accessing research and evaluation project funding. As a scholars network we are committed to assisting Samoa in the development of a body of transdisciplinary scholarship or research that rigorously informs, in culturally nuanced ways, the development and implementation of projects of mutual interest in custom law, legal and educational pluralism, and politico-economic sustainability – including transnational matai leadership.

3.2 We note that in order to progress any real efforts to develop Samoa’s custom law, there is first a need to respectfully understand and address: (a). any continuing tapu (taboo, prohibitions or sacred covenants) aiga may have over their customary knowledges (Tamasese, 2014, 2018c); and 2. the impact of concepts such as “e tala lasi Samoa” (which suggest a plurality of legitimate historical accounts in aiga customary knowledge) on the development and framing of a national custom law; and 3. the accessibility and inclusiveness of this custom law to all suli regardless of where they reside (Mo’a, 2018; Tamasese, 2018b).

3.3 As a Network many of our members have close professional relationships with the National University of Samoa and are committed to her development as an academic institution. We also acknowledge that Samoa is home to one of the University of the South Pacific’s (“USP”) main campuses. Many of our members are also either working directly for or closely affiliated to USP. We would be happy to partner with either or both institutions, and with any or all of the three government organisations mentioned in the CAB explanatory memorandum, in any collaborative effort to address the “review and research” issues raised in this submission.

4.0 Conclusions and Recommendations

Afioga e, with respect, we draw the following conclusions and recommendations:

4.1 That we, the Samoan scholars’ network, are a collective of Samoan scholars who are suli of Samoa, many of whom are also matai, living outside of Samoa, with ongoing responsibilities to aiga in Samoa. Therefore, we recommend that the voices of suli living outside of Samoa be heard.

4.2 That the legislative and structural changes proposed by the three bills require more detailed justification. The explanatory memoranda offered in support of these changes do not adequately reflect their potential impacts. Therefore, we recommend that the 9 bills be withdrawn from Parliamentary consideration and returned to the drafters to be reviewed, researched and redrafted after taking proper consideration of public consultation and submission findings.

4.3 That a national custom law jurisprudence be developed to shape and guide the work of the Land and Titles court as was intended by the drafters of our Constitution, the supreme law of Samoa. And, that the development of such a jurisprudence be informed by custom law experts, common law and equity experts, political and social scientists and representatives from marginalised communities of interest within and outside of Samoa. Therefore, we recommend that Parliament urgently considers properly investing in the development of a custom law jurisprudence for Samoa’s justice system, starting with its Land and Titles court.

4.4 That the appointment and acts of matai sa’o are the prerogative of aiga not of the state as per Samoa’s custom law to date. This is understood to be a core principle of Samoa’s custom law and therefore ought to be legally recognised in a plural legal system. Hence, we recommend that in establishing an intent to recognise Samoa’s legally plural system that Parliament removes any encroachment, actual or potential, on the pule or authority of aiga and villages to decide any and all matters relating to matai sa’o, including matai sa’o who reside outside of Samoa.

4.5 That there exist two anomalies as a result of the neglect of the development of our custom law over time: (a) the existence of a state and professional workforce who has little knowledge or competency in the principles or applications of custom law nationally (c.f. section 1.2); and (b) little to no systemic recognition given to the faithful service of suli, especially matai, living outside of Samoa to aiga, village and Samoan society at large. Therefore, we recommend that proper recognition be given to the equal place of custom law in Samoa’s legal system and that proper education and training support is provided for all suli, young and old, public servants and professionals, inside and outside of Samoa on key aspects of Samoa’s custom laws. This will require whole of government, whole of village, and whole of aiga support strategies.

4.6 That Samoa as a nation-state must balance her economic, political, cultural, social, educational, and spiritual interests and duties, and ensure that in doing so she is fair and just to all, regardless of political persuasion, colour, race, religion, creed, ethnicity, gender, class, sex and sexual orientation, as protected by the Constitution. Fairness, peace and justice are also addressed by SDG 16 to which Samoa is a signatory. Therefore, we recommend that the focus of the three bills is evenly shared between the protection of Samoan custom and of fundamental human rights, as enshrined in the Constitution.

4.7 That our Network is well positioned to support Samoa in its scholarly review and research work. This is our gift for Samoa, i le ava ma le fa’aaloalo lava.

5.0 Closing prayer

We close our submission with the following prayerful poem and words by Reverend Dr. Upolu Vaai and Reverend Alec Toleafoa:
We don’t have the spirit
We are spirit
We don’t have land
We are the land
We don’t have the ocean
We are the ocean
We don’t have relationship
We are relationship
We don’t have stories
We are the story
Rooted
Connected
Fixed yet fluid in bonds of
Being in Areness
Born from the depths
Of Inness
I am ‘in’ the community
The community is ‘In’ me.
(Reverend Upolu Vaai, 2017)

God of Our Understanding, we thank you for bringing us safely through the night and into the light of a new day.

We ask for your blessing and protection today as we prepare to leave the safety of the reef and go out again into the deep blue unchartered waters of change.

Give us courage to risk losing sight of the safety of shore and all that is familiar and comfortable in the hope of discovering new understandings, knowledge and wisdom.

We ask for patience to help us navigate the ebb and flow of our thoughts, for wisdom in our speaking and listening, and for generosity in the sharing of ideas and experience.

God of Our Understanding, we give thanks for the gifts of fa’asamoa and fa’amatai and for the people who have carried these across generations and for those who will shape their future.

Give us the confidence and the wisdom of our forebears to watch the pattern of the stars, the pattern of the waves, the shifting winds, and the turning of the seasons, all of which speak of change and when to adjust our sails and even to set a new course.

We ask a blessing on the people of Samoa and to all the people whose decisions will affect the lives of Samoan people, now and in the future.
We thank you for the empowerment and affirmation that comes with being part of a larger purpose.
God of Our Understanding you stretch out before us The Great and Infinite Star Path that in our following of it we might enjoy the fullness of life. Help us always to follow this way so that at journeys end we may find our true home.

The Peace of God be with you and all whom you love and all whom you find hard to love, today and always. Amen. (Reverend Alec Toleafoa, 2020)

6.0 Signatories

Luamanuvae, Luafataali’i, Lilomaiava Professor Sa’iliemanu Lilomaiava-Doktor, HawaiianPacific Studies, Humanities Division, University of Hawaii, West Oahu

Luamanuvae Associate Professor Morgan Tuimalealiifano, History Programme, School of Social Sciences, University of the South Pacific

Associate Professor Tamasailau Suaalii-Sauni, Criminology Programme, Faculty of Arts, University of Auckland

Lupematesila Misatauveve Dr Melani Anae, QSO, Pacific Studies, Faculty of Arts, University of Auckland

Loau Tuiloma Dr Luafata Simanu-Klutz, Associate Professor, Indo-Pacific Languages and Literatures Department, University of Hawaii,

Manoa Dr Fuafiva Faalau, Population Health, Faculty of Medicine and Health Sciences, University of Auckland

Dr Caroline Vercoe, Art History, Faculty of Arts, University of Auckland

Dr Maryann Heather, Faculty of Medicine and Health Science, University of Auckland, and General Practitioner, Southseas Healthcare Clinic, Auckland

Seulupe Tominiko Dr Falaniko Tominiko, Director of Pacific Success, Unitec Institute of Technology, Auckland

Seuta’afili Dr Patrick Thomsen, Pacific Studies, Faculty of Arts, University of Auckland

Dr Karamia Muller, Architecture, Faculty of Creative Arts and Industries, University of Auckland

Dr Moeata Keil, Sociology Programme, Faculty of Arts, University of Auckland

Ms Fetaui Jerodeen Olivaigafa Iosefo, Professional Teaching Fellow & PhD Candidate, Faculty of Education and Social Work
Muliagatele Vavao Fetui, PhD Candidate, Pacific Studies, University of Auckland

Ms Natasha Urale-Baker, PhD Candidate, Faculty of Education and Social Work, University of Auckland

Mr Tim Baice, Academic Coordinator, Faculty of Education and Social Work, University of Auckland

Ms Naomi Fuamatu, PhD Candidate, Faculty of Arts, University of Auckland
 

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