P.M. rebukes Fiu over customary lands dispute

Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi has rebuked prominent environmentalist, Fiu Mataese Elisara, telling him to find “tree to hide under” so no one could see him anymore.

The Prime Minister, who is also the Acting Minister of Natural Resources and Environment (M.N.R.E.), said Fiu should be ashamed of being publicly corrected by the Attorney General, Savalenoa Mareva Betham-Annandale, over his insistence that under the H.R.P.P. administration, customary lands are under threat and could be alienated.

“My joy is that when it came in the Samoa Observer, it was then corrected and the correction was not just a small correction,” Tuilaepa said during his weekly media programme. “He’s been writing about this for a while and the Government has also been trying to explain for a while but he insists.

“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.”

The Prime Minister was commenting on an exchange of opinions between Fiu and the Attorney General last week, over the ongoing debate about customary lands.

Two weeks ago, Fiu, who is the Director of Ole Siosiomaga Society (O.L.S.S.I.), had accused the Government of misleading the public, and promoting propaganda in connection to customary land, as part of their election campaign.

 “In this critical time with political uncertainty in Samoa heading to national elections it is difficult for some of us who have engaged for a decade to maintain decorum or ignore concerning efforts by government attempting to mislead voters about security of our customary lands,” Fiu wrote in an opinion piece printed in the Samoa Observer.

 “The television propaganda by 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.”

But Attorney General Savalenoa immediately rejected Fiu’s allegations.

"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 in a letter to the Samoa Observer. "The Television Program complained of, is part of public awareness, and not Government propaganda."

Tuilaepa said Fiu should have known better, as someone who was once the Head of the Land and Survey division, before it became M.N.R.E.

“I am pleased that the Attorney General has corrected this man in detail because his opinions are wrong. It was a very detailed correction for this man who's been doing this for a very long time,” Tuilaepa said.

“It shows it was a waste of time when he was the Head of the Ministry of Lands and Survey from 1988 to 1991 because this is the sort of stuff he should’ve looked at.”

Tuilaepa said anyone who is not a lawyer would read the Attorney General’s response and understand how “stupid” Fiu’s opinion is.

“He’s expressed his opinion so many times about the risk of alienation of customary land. They are very strong opinions about the threat to customary lands when it comes to leases,” Tuilaepa said.

“In essence, he’s saying Article 102 of the Constitution does not adequately protect customary lands, especially the leasing of lands and licensing of such lands for business developments.”

The Prime Minister said this could not be further from the truth and the Attorney General’s explanation in response to Fiu should put these allegations to bed.

“Since independence and the Constitution Convention, our forefathers placed a lot of emphasis on the protection of customary lands, closing any loophole from allowing customary land from being sold,” Tuilaepa said.

“There was a law passed in 1965, when Mata’afa was the Prime Minister. It was their view that customary lands should be used in the development of Samoa.

“So this law was formulated and passed in Parliament, which allowed the leasing of customary lands for developments, and licensing for business developments. This has been happening until now.

“The question is, has there been a piece of land sold? No land has ever been sold.”

Tuilaepa said the Government respects the wisdom of Samoa’s forefathers who were part of the Constitution Convention.

“The Committee that put such protection in place was chaired by Tamasese Meaole, and they passed Article 102 (of the Constitution) and it is still there.”

The article in question states 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.

“That reflected the wisdom of Tupua Tamasese Meaole,” Tuilaepa said. “This is the same Committee where Malietoa Tanumafili, Mata’afa Faumuina, Tuimaleali’ifano and three of the highest ranking chiefs from different traditional districts were represented. In other words, the whole of Samoa was represented and were present in the discussion of the Constitution to ensure our lands are protected.”

But the country needed to be developed and Tuilaepa reminded that it was the late Tupua Tamasese Meaole himself who said in Parliament “that money doesn’t fall from the sky, when we have the riches of the gifts of God we can use.”

“So in 1965, a law was created to lease lands for developments and to license lands for business developments, based on the desire of the leaders at the time to develop Samoa,” Tuilaepa said. The law in question is referred to as the Alienation of Customary Land Act 1965.

“We’ve been trying to explain this but there are people who are intelligent but they are also mentally weak.”

Tuilaepa referred to the Samoa Solidarity International Group (S.S.I.G.) who have been very critical of the Government’s land policies.

“They were very busy misleading the country claiming that customary lands weren’t adequately protected. Where are they now?” Tuilaepa said.

“We’ve asked them to give us a piece of land that is supposed to be protected under section 102, that has been sold since 1962. But they said, they were only doing this in case it happens in Samoa because it’s happening in New Zealand and Australia. And that’s why I said they should take their message to New Zealand and Australia because this is not happening in Samoa.”

The Prime Minister also addressed allegations about using customary lands for business mortgages.

“When it comes to mortgages, there are two different things,” he said, “the land is separate from the lease. The land is the asset, the lease is an asset based on the land.

“The difference is that if the lease is ten years old, once your lease is over you pack up everything and leave the land. “You can also mortgage the lease but after ten years, you pack up and leave.

“You can mortgage the lease on the land, but you cannot mortgage the land.  Our customary lands remain, you cannot sell it.”

The letter of correction from the Attorney General and Fiu Mataese’s response are reprinted verbatim below. 

 Attorney General responds to customary lands claim 

Dear Editor,

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 Leasee (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.

Mal e fa’aalaoalo lava,

Savalenoa Mareva Betham-Annandale

ATTORNEY GENERAL    

Fiu Mataese Elisara’s response

 In response to Attorney General on issue of customary lands 

Dear Editor,

 I wish to register my appreciation to the Attorney General Savalenoa Mareva Betham-Annandale for her reply published in Samoa Observer of 19 November 2020 to our write-up published in Samoa Observer of Monday 16 November 2020 giving reasons why we continue to be concerned that the protection by the Constitution of customary lands in Samoa is no longer the case.

Our similar write-ups in the past were mostly ignored by government and M.N.R.E.

The AG's letter provides our peoples some avenue for informative balance in their struggle to process different views, analysis, information and allow them make comments related to their legitimate concerns on the considered risk that ownership of customary lands protected under our Supreme Law is in our view no longer secure.

We suggested that the M.N.R.E. propaganda in the last month informing our people about the security of customary lands ownership was in our assessment misleading and unlawful.

We therefore welcome the A.G.'s insight and understand her clarified legal positions representing the government of Samoa (GoS) and in defense of the Prime Minister as Minister of M.N.R.E.

We were contemplating whether to pen a response as we believe people can make up their own minds when reading our write-up and the AG's letter. We hope people can still do that. However, we owe it to those interested in following this discourse to prepare this short reply and indeed to accord the A.G. this courtesy response.

At the outset, let me reiterate that our position has been consistently clear in the past twenty or so years on the efforts of H.R.P.P. government since 1998 to carry out land reforms and with the pressure from World Bank (WB) and Asia Development Bank (ADB) proceed since then to change our customary land tenure system to allow interests of investors and developers protected.

By way of background information - The World Bank and GoS 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. 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 lay 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 and whilst it was envisaged to take a shorter timeframe and pathway. We see today that despite the many attempts to devise various legislations to achieve this land reform goal, it has not been easy. It has taken more than twenty years and problems continue to surface and for good reasons. We do not want to go into the details of this long and extended struggle as it has been comprehensively documented, but wish only to confine these brief comments to respond to the AG's letter.

For us, notwithstanding the AG's response, we continue to standby our stated position as clearly articulated and stated in our write-up to which the AG responded in her said letter.

Suffice only to submit these additional comments to say:

1. It is unfortunate the AG did not explain the retrospective and retroactive applications of amended legislations that went into the Alienation of Customary Land Act 1965 (ACLA) that caused it to be replaced by the legislation passed in June last year 2019 now called the Leasing and Licensing of Customary Land Act 1965 (LLCL) as these are all relevant to the basis of our concerns.

    - the fact that the Deed System of land registration at the time of ACLA in 1965 was consistent with the prohibition spirit and intent of Article 102 of the Constitution in relation to alienation of customary lands       

    - LTRA2008 (section 9) required registration of all lands including customary land leases since 1965 and for the first time, the Constitution prohibition on alienation of customary lands no longer applied. LTRA was amended in 2015 just to address the concerns about issues of 'registration' and 'recording' of customary land leases under LTRA with indefeasibility of title requirements.

    - Supreme Court decision on Sections 25 and 26 LTRA on customary land leases is clear on customary lands being part of LTRA.

    - customary lands being part of LTRA despite its exclusion under Section 22 of LLCL does indeed give rise to operations of Article 109 of Constitution, requirement for Referendum.

    - The Customary Lands Advisory Commission Act 2013 (CLAC) Section 15 Consequential amendment attempted to explain for the first time what a 'lease interest' entails to include mortgage of interest in customary land leases or license. This was inserted into the ACLA 1965     

2. We said that the propaganda by M.N.R.E. was misleading and unlawful. We ask:

    - Part 3 of the LLCL address Provision Applicable to Mortgage of Leases of Customary Lands is clear on the fact that contrary to the AG's explanation that only 'interests' of customary land leases are mortgaged, the title of Part 3 is clear about customary land 'leases' being mortgaged. There are many conflicting language in the LLCA on this which make it misleading and unlawful.

    - paragraph 16 of our submission talks about how incredibly odd that foreclosure process is not spelled out by the amended LLCA law as mortgages cannot exists without foreclosures and need to be clear of what are the rights and responsibilities of the different parties in the event of a mortgage default. This again in our view renders LLCA in MNRE propaganda misleading and unlawful.

    - Section 21 of LLCA on Regulations that gives effect to Part 3 of LLCA continues to be NOT available when we checked with staff of Legislative after some 17 months since the legislation was passed. In our view, this renders the propaganda of the LLCA by MNRE both misleading and unlawful

3. Supreme Court Decision in paragraph 5 of our submission on customary land leases being 'public land' leases, if read with the Land Survey and Environment Amendment Act 2016, renders customary land leases as 'public land' leases being allowed to be leased for 99 years, This is tantamount to alienation of customary lands contrary to prohibition under Article 102 of Constitution.

We request that people read both our submission and AG's letter to make up their own minds on what is articulated and explained. Together with the foregoing added comments, we hope the information will help. For us, this further substantiate our concern that customary lands are no longer protected by the Constitution, and the MNRE propaganda is both misleading and unlawful.

Fa’afetai lava and have a pleasant weekend.

Fiu Mataese Elisara