A.G. rejects Govt. customary lands propaganda claim

Attorney General, Savalenoa Mareva Betham-Annandale, has denied claims that the Government is misleading the public with televised "propaganda" about laws that govern customary lands in Samoa.

Made by the Director of Ole Siosiomaga Society (O.L.S.S.I.), Fiu Mataese Elisara, in a story published on the front page of the Samoa Observer on Monday, the Attorney General said the claims are misleading and are a result of misunderstanding.

"The Television Program put out by the Ministry of Natural Resources and Environment, responsible for the administration of this legislation, is not misleading and is not unlawful," Savalenoa said. "The Television Program complained of, is part of public awareness, and not Government propaganda."

The Attorney raised her objection to the claims in a letter to the Editor of the Samoa Observer, dated 18 November 2020.  

Prime Minister Tuilaepa Dr. Saielele Malielegaoi is the incumbent Minister of the M.N.R.E.

In an opinion piece from Fiu, published on Monday, 16 November, he claimed that “television propaganda by the M.N.R.E. in the last month or so alleging falsely that customary lands continue to be protected and secured under the Constitution is hard to ignore.”

The matai from Sili, Savai’i, added, “We are concerned about the ongoing government propaganda on television and other mediums about customary land being protected from alienation under the Constitution.”

He called the efforts “misleading and unlawful” and lists his issues with a host of land laws. 

However, the Attorney General said when the laws are read properly with a thorough understanding of related laws, it is clear that none of the statutes cited by Fiu translates into alienation of customary land.

“I wish to correct a number of misconceptions and misunderstanding of the law of Samoa as cited by the author of that article,” the Attorney General said.

 “When read properly with a thorough understanding of the relevant laws, it is clear that none of the legislation cited and referred to in the abovementioned article, amount to the alienation of customary land."

The Attorney General explained the measures cited by Fiu, starting with the Alienation of Customary Land Act 1965 which was later renamed the Leasing and Licensing of Customary Land Act 1965.

Her letter also covers Articles 102 and 103 of the Constitution; the Land Titles Registration Act 2008 (LTRA) and a Supreme Court decision from 2018 that declared the Lands and Titles Court (L.T.C.) is not the competent court to address a dispute relating to customary land leases.

“First, the Alienation of Customary Land Act 1965, specifically provides for the leasing of customary land and the Leasing Agreement is signed by the responsible Minister as Trustee of the beneficial land owners,” Savalenoa writes.

“The legal provisions neither convert the status of land to public land nor does it take away the ownership of the said land from the beneficial land owners.”

Article 103 of the Constitution, which sets up the Lands and Titles Court (L.T.C.), does not grant the L.T.C. jurisdiction to deal with leases over customary land, she said.

“Secondly, the Constitution, Article 103, sets up the L.T.C. and specifies its jurisdiction as “dealing with disputes over customary land and matai titles”. It does not grant the L.T.C. any jurisdiction to deal with leases over customary land,” Savalenoa writes.

“As the lease is an agreement between two parties, the Lessee (usually an investor) and Lessor (the responsible Minister on behalf of the beneficial land owners) it is therefore an agreement enforceable under contract law. That is the basis of the Supreme Court decision of 2018 for declaring that the Land and Titles Court is not the competent court to address a dispute relating to leases over customary land.”

Thirdly, she said Section II of the Alienation of Customary Land Act 1965 does not change or convert the status of customary land into public land. 

Article 102 is clear that no customary land can be alienated except where authorized by an Act of Parliament, Savalenoa writes.

“Article 102 0f the Constitution is very clear that no customary land can be alienated except where authorized by an Act of Parliament, and that Act of Parliament is the Alienation of Customary Land Act 1965,” the A.G. said.

The Act was renamed the Leasing and Licensing of Customary Land Act 1965 but for the purposes of leases and licenses both of which neither change the status of customary land nor amount to selling of customary land, she added.

“Fourthly, the Land Titles Registration Act 2008 (L.T.R.A.) does not violate article 102 of the Constitution as the L.T.R.A. is an Act that provides for the registration of titles of freehold land which individuals own and public land which the Government owns,” Savalenoa said.

“As the L.T.R.A. does not provide for the alienation of customary land at all, it therefore does not give rise to the operation of article l09, for a Referendum.”

Further expounding on the Leasing and Licensing of Customary Land Act 1965, the law and its accompanying Regulations provides for leasing and licensing of customary land, she said.

It also provides for the mortgaging of the leasehold interests over the customary land and not the customary land.

The Leasing and Licensing of Customary Land Act 1965 sets out a comprehensive legal framework for applying for a lease, license or mortgage over the leasehold interest over customary land, and provides for stringent safeguards of the interests of the beneficial land owners, Savalenoa explained.

“The Register established for these purposes are for leases and licenses on customary land and mortgages over leasehold interests, but that there is no “customary land register”, she said.

“As it is an Act that refers to customary land, it correctly excludes any application of the L.T.R.A. and the Property Act 1952.”

Going back to the television program from M.N.R.E., the Attorney General states it is not misleading or unlawful, nor is it propaganda.

“The television program put out by the Ministry of Natural Resources and Environment, responsible for the administration of this legislation, is not misleading and is not unlawful. The television program complained of is part of public awareness, and not Government propaganda,” said Savalenoa.

“Trust this clarifies the law for the author of the said article.”

Read the Attorney General's letter in full on page 13 of the Samoa Observer's Thursday edition.

 

The Letter from the Attorney General Savalenoa Mareva Betham-Annandale is printed below in verbatim:

18 November 2020EditorThe Samoa Observer

Afioga e,

RESPONSE TO ARTICLE entitled “Government propaganda on customary lands misleads”

 

1. I refer to the above subject matter and to a letter penned by Fiu Mata’ese Elisara, Matai from Sili, published in the Samoa Observer edition of Monday, 16 November 2020.

2. I wish to correct a number of misconceptions and misunderstanding of the law of Samoa as cited by the author of that article.

3. First, the Alienation of Customary Land Act 1965, specifically provides for the leasing of customary land and the Leasing Agreement is signed by the responsible Minister as Trustee of the beneficial land owners. The legal provisions neither convert the status of land to public land nor does it take away the ownership of the said land from the beneficial land owners.

4. Secondly, the Constitution, article 103, sets up the Land and Titles Court and specifies its jurisdiction as “dealing with disputes over customary land and matai titles”. It does not grant the Land and Titles Court any jurisdiction to deal with leases over customary land. As the lease is an agreement between two parties, the Lessee (usually an investor) and Lessor (the responsible Minister on behalf of the beneficial land owners) it is therefore an agreement enforceable under contract law. That is the basis of the Supreme Court decision of 2018 for declaring that the Land and Titles Court is not the competent court to address a dispute relating to leases over customary land.

5. Thirdly, section II of the Alienation of Customary Land Act 1965 does not change or convert the status of customary land into public land. Article 102 0f the Constitution is very clear that no customary land can be alienated except where authorized by an Act of Parliament, and that Act of Parliament is the Alienation of Customary Land Act 1965 renamed the Leasing and Licensing of Customary Land Act 1965 but for the purposes of leases and licenses both of which neither change the status of customary land nor amount to selling of customary land.

6. Fourthly, the Land Titles Registration Act 2008 (LTRA) does not violate article 102 of the Constitution as the LTRA is an Act that provides for the registration of titles of freehold land which individuals own and public land which the Government owns. As the LTRA does not provide for the alienation of customary land at all, it therefore does not give rise to the operation of article l09, for a Referendum.

7. The Leasing and Licensing of Customary Land Act 1965 and its accompanying Regulations, provides for leasing and licensing of customary land as well as the mortgaging of the leasehold interests over the customary land and not the customary land. It sets out a comprehensive legal framework for applying for either a lease, license or mortgage over the leasehold interest over customary land, and provides for stringent safeguards of the interests of the beneficial land owners. The Register established for these purposes are for leases and licenses on customary land and mortgages over leasehold interests, but that there is no “customary land register”. As it is an Act that refers to customary land, it correctly excludes any application of the LTRA and the Property Act 1952.

8. When read properly with a thorough understanding of the relevant laws, it is clear that none of the legislation cited and referred to in the abovementioned article, amount to the alienation of customary land. The Television Program put out by the Ministry of Natural Resources and Environment, responsible for the administration of this legislation, is not misleading and is not unlawful. The Television Program complained of is part of public awareness, and not Government propaganda.

9. Trust this clarifies the law for the author of the said article.

Male fa’aalaoalo lava,

Savalenoa Mareva Betham-Annandale

ATTORNEY GENERAL

 

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