Alienation of customary lands fears dismissed
The Executive Director of the Samoa Law Reform Commission (S.L.R.C.), Telei’ai Dr. Lalotoa Mulitalo Seumanutafa, is absolutely steadfast.
She is adamant that the much maligned Lands and Titles Registration Act (L.T.R.A.) 2008 is "incapable of alienating" Samoa’s customary lands.
Telei’ai made the point when she spoke at the Pacific Law, Custom and Constitutionalism Conference in Wellington last week where the issue of alienation of customary lands was on the agenda (read her paper on page 10 and 11).
“Governments seek the best way forward for the development of their own countries,” she said. “Samoa has taken a leap of faith through the leasing and mortgaging of customary land leases.
“Samoa has done so with the utmost respect and ultimate caution to its existing laws and the supreme law, the Constitution of the Independent State of Samoa.
“As ‘customary land’ is a measina Samoa; such a move requires boldness in leadership, governance with a clear vision, and faith in the populations that one day, the populations will see to it that “All laws are made for the benefit of the people they are to regulate.”
Telei’ai highlighted five points in her presentation to validate her claim that L.T.R.A. 2008 will not alienate customary lands. They include:
• Nothing in the Act allows the alienation of customary land;
• The Act expressly says ‘alienation of customary land is prohibited’
• The very limited reason the term ‘customary land’ is used in this Act is that it is only due to the operation of other existing laws
• Other related laws that allow customary leases for public purposes have more influence on customary land than this Act
• Since enactment in 2008, no court proceedings have ever challenged the provisions of the L.T.R. Act on any allegation of customary land being alienated
“Before the Land Titles Registration Act was enacted by the Parliament of Samoa in 2008, in its place was the Land Registration Act 1992/1993,” she said.
“As its Long Titles stated, this 1991/1993 Act was an Act to regulate the law relating to the registration of deeds affecting land. The Land Titles Registration Act 2008, at section 94 repealed the Land Registration Act 1992/1993.
“The Land Registration Act 1992/1993 was a deed system of registration, and the Land Titles Registration Act 2008 introduced the Torrens system of land registration in Samoa. As is referenced in a number of court cases in Samoa, the following are some basic differences between the Deed system and the Torrens system (under the 1992/1993.)
She noted that prior to 2008, a series of consultations were undertaken on the Land Titles Registration Bill 2006, 2007 until 2008 and enactment.
The consultation was led by a Cabinet appointed Commission headed by late Rev. Oka Fauolo. They were carried out with the Samoa Law Society, the Judiciary, the relevant Government Ministries, the private sector and the public.
“In interpreting laws, the first point of reference for the courts and any user of any law, is the law itself. What does it say, or not say (silent) on the issue? The issue is – is there likelihood customary land law would be alienated by the provisions of the LTR Act?
“An analysis of the provisions of the Act shows no provision of this Act allows this. In fact, the provisions of the Act prohibit this.”
“The provisions say that “No provision of this Act may be construed or applied to: (a) Permit or imply the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or
(b) Permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the determination of title to customary land.
“Where in any Act, there is such a provision, it means exactly that. “No provision” allows the alienation of customary land. So for the Land Titles Act 2008, it has 98 sections, this means none of the 98 sections permit or is implied to permit the alienation of customary land.”
Teleia’i’s assurance follow that by the Attorney General, Lemalu Hermann Retzlaff, who has also assured that customary lands are not under any legal threat.
“I respectfully pose this question: what customary land has been legally converted to freehold land and/or 'sold off', since the enactment of the Lands Title Registration Act 2008? (L.T.R.A.). The answer is none,” Lemalu said recently.
“That is because it is a legal impossibility.”
Lemalu pointed out that the Act deals only with freehold land. It can never be utilised to interfere at all with customary land rights that are protected in the Constitution.
According to Lemalu, the L.T.R.A. was introduced to help protect and increase clarity for transaction for freehold land only.
“I emphasise that it actually therefore states in its own body in section 9 as follows: Section 9(4) and (5) of the LTRA:
“(4) No provision of this Act may be construed or applied to:
i) permit or imply the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or
ii) permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the determination of title to customary land.
(5) Nothing in this Act permits the exercise of any power or affects any interest in customary land that could have been applied by law prior to the commencement of this Act.”
Lemalu says the Acts legal intent is crystal clear. He then points to Article 102 of the Constitution mentioned in s9 which states that:
“No alienation of customary land- It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:
“Further, the Laws that protect families with interest in any customary land, mean that where any land is leased without proper consultation with all members of a family that have connection or claim to such land, those not consulted can object against the lease or license.
“The objection is then determined by the Land and Titles Court (see section 8 and 9 of the C.L.A 1965).
“The Judiciary have upheld such objections to protect the rights of those disaffected in such a manner and therein protecting rights to customary land,.”
He also points out that in a case that customary land is leased by mutual agreement then the beneficiary family that owns the customary land has rights under the lease and like all lessees can seek to enforce them when required including revoking the lease.
“The government via Ministry of Natural Resources and Environment (M.N.R.E.) must oversee the compliance as a trustee assisting our families, and further assisted by the Attorney Generals office where required.
“The balance the law aims to achieve, is to protect the land while allowing for economic developments that create jobs and income both for the owners of the land and the community at large.
“But in all that the status of the land remains as customary and all legal protection therefore apply.
“It can never be legally turned into freehold land.”