Senior lawyer rejects customary land threat
The lease of customary lands for economic development can help address hardship, poverty and high unemployment rate.
This is the opinion of senior lawyer, Sala Josephine Stowers Fiu, who gave her legal perspective on the issue last week.
The former Ministry of Natural Resources and Environment A.C.E.O of the Legal Division was among speakers at the National Focus Group Dialogue hosted by the Samoa Umbrella for Non-Governmental Organization.
Speaking to the Samoa Observer, Sala said the lack of understanding about the Constitution has played a big role in the confusion about the lease of customary lands.
To highlight her point in terms of using customary land for development, Sala pointed to Fiji.
“The majority of their customary land are being used for business developments. They have set up a very good system for promoting the wider use of their lands,” she said.
Sala is adamant the Constitution does not present any loopholes when it comes to customary land leases.
“The Constitution is clear, there are three types of land, Customary, freehold and public. The customary land lease is under Article 1 and 2 of the Constitution, which protects the rights of the Samoan people to their customary lands.
“This is the only article of the Constitution that states, it cannot be removed or changed by the 2/3 majority of parliament. It has to go out to a public referendum for public vote during a general election.
“Only then that part of the Constitution can be changed, otherwise our rights are protected under the law.
“The Constitution is a strong provision. It’s not saying that customary land can be purchased because it cannot be sold, it’s prohibited under article one and two.
“It’s the only Constitution in the Pacific that has that provision.
“That really goes to show the positive foresight of our forefathers, to ensure whatever happens in the future, customary lands remain as costmary lands and the rights of the family to the land are strongly entrenched in the Constitution.”
Sala said people are becoming more aware of their rights.
“And those rights are fully supported under the amendments, like the right to reject a mortgage over the lease; the right to terminate the lease if you find the lease rent in arrears.
“You also have the right to disallow an assignment of lease; these new protections that are coming in through is to further support the rights of our people.
“Sometime our people want to be part of the legal execution of the lease. We can actually allow that under the new amendments; because under the old procedures the Minister is emphasized as the trustee of the lease on behalf of the Aiga.
“Now a family may say their Chief should be the other co-signature of the lease…. , the fact that they are wanting to be a part in the legal process it’s a good step ahead to be confident that their rights are being recognized and that needs to be considered by the government.
“At the end of the day, government has no rights over customary lands.”
According to Sala the lease of customary lands has been in the Constitution for more than 50 years.
“But I think the difficulty that our people are facing now is that it sounds foreign.
“The majority don’t have any idea of what that means, and it really comes down to advocacy work and for you as a customary land owner to implement the use of the lease. You need to come onboard and create a lease because it’s available.”
She also made it clear that under our Constitution, it provides the opportunity for the Samoan people to make use of their customary land by way of lease for authorized purposes.
“There are a lot of families out there that are not coming under the law to use the provision of law and perhaps those are the ones that are having difficulties ensuring that the rights of the people that own the land are protected.
“There really needs for some full understanding of how the systems work in order for them to benefit, from relevant laws.
“For instance, the laws allows leases of customary lands for the purposes of Hotels development, for industrial purposes or manufacturing all those purposes.
“I suppose even the people that have money, do no entertain those particular opportunities. That’s where the setback comes in, in terms of promoting and making use of our customary land…,” she said.
According to Sala, 81% of Samoa’s lands are owned under communal basis.
“Our customary lands manned by the Chiefs, because it’s our Chiefs that are the leaders of our lands, our families, our titles, everything to do with our customs.
“And if the chief is not alert or perhaps fully aware of these opportunities with the support of his or her family then there’s always a challenge and I suppose why the leases are not being widely used throughout the years.
“As I stated during my presentation only 300 leases have been registered and that only comes to less than 1% of 81% of customary land.
“Understand that not all customary lands are presented in an economic sort of way but there are opportunities for our people that are more valuable like the tourism. “Like families who have land on the coast lines.
“Families that are actually in a very elevated, nice ocean view, I suppose its really a matter of our people coming on board asking questions, wanting to know more about utilizing the leases and also for the government to do more promotions and these opportunities of the lease of customary land that’s been in place for more than 50 years.”