Customary lands, alienation fears and Samoa’s sacred Constitution

The debate over fears about the alienation of customary lands is not new. It has been raging for some time now and it’s unlikely to go away immediately given the sensitivity of the economic and political climate in Samoa.

And with monumental changes being proposed to the Land and Titles Court, the Judiciary as well as the Constitution, the matter is as relevant today as it was when it was first raised.

But it is a good debate to have as long as the arguments for and against are constructive and on a level where ordinary people are educated about such a critical subject matter. There is an opportunity in everything. The reality is that land laws is such a complex issue that lawyers and legal experts are often the only ones with the ability to understand and interpret them.

But what happens when lawyers and legal experts themselves disagree over an issue. How are ordinary people supposed to be educated when even the experts cannot agree on something?

That’s precisely what is happening so that we are left with a hugely controversial topic, which continues to divide opinions depending on where you sit. Indeed, as long as there appears to be ambiguity, people will always ask questions and so they should.

This is why the customary lands debate in Samoa is unlikely to go away very quickly. It’s better that we are talking about it though.

Why? Because land matters, especially for a country where customary lands dominate the total land mass. Besides, without land, there is no Samoa. In this country, our land is our inheritance. It is the connection we have with our past, present and our future. Land is our fa’asinomaga, it is what gives our matai titles meaning.  Without a connection to the fanua, we are nomads in exile in this country. Which is not what we want.

Over the years, a man who has become the face of a brave and concerted effort to highlight the threat to customary lands as a result of Government’s development plans is Fiu Elisara Mataese. Although he is not a lawyer, he has been well supported by legal experts in his argument. For more than 20 years, he has been critical of the Government’s land reforms saying that with backing from the World Bank and Asia Development Bank; there is a huge risk in customary land tenure.

“The World Bank and the Government in 1999 were already in dialogue to reform the land system in Samoa with the specific aim of introducing the indefeasibility of title Torrens system to enable this proposed land reforms proceed,” Fiu has argued.  “The second phase of the Infrastructure Asset Management Program 2003 started that process and designed to allow the authority of (Pule fa'a Sa'o) over customary lands to be recorded and turn 82% of customary lands into the indefeasibility of title registration Torrens system. The LTRA2008 lays the ground work and legal framework for it.

“The ADB and GoS through the 2002-2004 Samoa Strategy and Policy Dialogue provided policy and legislative environment for business development to improve access to customary lands, use of customary lands as collateral, improve debt recovery, and facilitate secured transactions (ADB TA No.3549 "Review of Economic Use of Customary Lands - 2003").

“Fundamentally this is the root of the customary land discourse…”

The Government of course has been steadfast in its position that there is absolutely no risk to customary lands. From Aumua Ming Leung Wai, Lemalu Hermann Retzlaff to the current Attorney General, Savalenoa Mareva Betham-Annandale, they have been adamant that Samoa’s customary lands are secured.

Last week, Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi issued what was perhaps his harshest rebuke to Fiu, in response to his latest attempt to give the issue a voice. Calling Fiu “stupid”, Tuilaepa said the outspoken environmentalist should hide his face in shame.

 “He’s been writing about this for a while and the Government has also been trying to explain for a while but he insists,” Tuilaepa said. “The best thing is that the Attorney General has responded. If I were this man, I would go and find a filimoto tree to hide under so no one would see me anymore, because the correction was an embarrassment to him.”

Now that sounds like a typical Tuilaepa line and for Fiu, like most Samoans who have been subjected to such abuse and ridicule from the top, it’s just another beautiful day in paradise. Political innuendos aside though, there is nothing for Fiu, or anyone else who has been brave enough to raise the matter, to be ashamed of.

If anything, the Government’s often-harsh reaction and the undiplomatic retaliation from Prime Minister Tuilaepa says a lot more. The issue of customary lands is obviously a sore point and where there is smoke, there is bound to be fire. Fiu knows something perhaps many people just cannot see yet. He also knows that this is why the Government is trigger-happy when he touches this particular nerve.

But the issue is a lot bigger than Prime Minister Tuilaepa, the H.R.P.P. Government and Fiu himself. This issue is about the people of Samoa and what rightfully belongs to them. It is their tofi, their fa’asinomaga and inheritance. It is worth fighting for, even at the risk of being laughed at, abused and ridiculed from the very top.

Let us be reminded of what the former Head of State, Tui Atua Tupua Tamasese Efi, said when he broke his silence over the issue of customary lands, two years ago.

“Today I make a plea that as a nation whose faasinomaga (identity) and tofi (inheritance) are inextricably connected to our customary lands that we stand together and demand that this ambiguity be properly attended to…” he said. “Here the colonial, nay neo-colonial, master is not an outsider forcing us to do something against our will, he is right within us, moving among us, preying on our vulnerabilities, luring us to believe that there is no other option for economic development but the alienation of customary lands. Our forebears knew this would happen.”

Could this be why there is such a strong push to amend the Constitution yet again, in relation to the controversial L.T.C. Bills? Who knows?

But it’s worth thinking about as you rest this Sunday, God bless Samoa!


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