Samoan chiefs warn A.D.B. about ‘social unrest, conflict and violence’

“We wish to highlight that the A.D.B.-backed reforms appear to be in breach of constitutional protections of customary land. Article 102 of the Constitution prohibits the alienation or disposition of customary land or any interest in customary land. This includes prohibition of sale or mortgage of customary land or interests in it, and prohibition of land or interests in it “being taken in execution or be assets for the payment of the debts to any person on his decease or insolvency”

A group of village chiefs has warned the Asian Development Bank (A.D.B) that the alienation of customary land in Samoa could lead to “social unrest, conflict and violence.”

What’s more, they claim that Samoans stand to face “dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.”

The warning is contained in the official complaint by the group submitted to the A.D.B at the beginning of the month. A copy of the complaint has been obtained by the Sunday Samoan. It has also been made available online.

The group is made up of Fiu Mata’ese Elisara, of Sili, Leuluaiali’i Tasi Malifa, of Afega, Telei’ai Dr. Sapa Saifaleupolu, of Samatau and

Lilomaiava Ken Lameta, of Vaimoso and Safotu. The first part of the complaint was published in the Sunday Samoan yesterday. This is the continuation:

THE OFFICIAL COMPLAINT
21. With Project 46436, Agribusiness Support Project, the ADB seeks to vastly expand the scale of collateralized lending to businesses using customary land as a primary input. Through the project, ADB shares risk with financial intermediaries; will it also share risk with the custodians of customary land when trying new development? If customary land leases are used as collateral for sub-projects, the financial intermediary and the ADB should have effective safeguards in place to ensure that the leases are of a short duration and emerge from a truly voluntary agreement with the free prior and informed consent of the land-owning group. If leases of customary land are used as collateral, this security interest should have a lower priority than other collateral in the event of foreclosure – the ADB should not prioritize the risk faced by financial intermediaries over that of customary landowners, for both practical and cultural reasons. Since the Environmental and Social Management System documentation has not been made publicly available, we fear that the system will not ensure such safeguards or identify and appropriately manage related risks. Any institutional support systems created should be built with sensitivity to the nature of customary land.

22. The ADB commits to supporting lending in a way that respects local context and custom, but also states: “Although land tenure no longer complies with traditional customs, no new laws have been established that define property rights in land classified as customary.” If, as this comment suggests, the ADB considers Samoan land to be customary ‘in name only’, then how can the ADB respect local context and custom? Has the project considered and addressed the risk of displacement and foreclosure from customary lands? Will financial intermediaries require that leases used as collateral are entered into a torrens land registry, contrary to our customary tenure system? We fear that the lack of consultation in this and other projects has led the ADB to form incorrect assumptions about the political, social, economic, and cultural role customary land plays in contemporary Samoan society.

23. Finally, we wish to highlight that the ADB-backed reforms appear to be in breach of constitutional protections of customary land. Article 102 of the Constitution prohibits the alienation or disposition of customary land or any interest in customary land. This includes prohibition of sale or mortgage of customary land or interests in it, and prohibition of land or interests in it “being taken in execution or be assets for the payment of the debts to any person on his decease or insolvency.” While Article 102 allows leasing of customary land, it prohibits alienation or disposition of the land from its rightful owners: the aiga – the entire kin group. The set of ADB-supported reforms that empower individual matai to enter into leases with outsiders and allow for the use of those leases as collateral to access credit violates the spirit and the letter of this fundamental constitutional provision. By virtue of Article 109 of the Constitution any amendment to Article 102 requires the approval of over two-thirds of the valid vote in a public referendum, in addition to the usual two-thirds support of Parliament. The importance of the protection of customary land tenure to the Samoan nation cannot be understated. Nonetheless, the ADB-supported reforms attempt to undermine and erode these Constitutional protections. Indeed, they violate the whole fabric upon which the Framers of the Constitution adopted Article 102 and doubly entrenched this protection of customary lands through Article 109.

III. Non-compliance with ADB Operational Policies and Procedures
24. We believe that the harms and anticipated harms described above are the result of ADB’s failure to follow its operational policies and procedures, especially in relation to the following:

Inadequate E&S due diligence:
25. The Safeguard Policy Statement (SPS) states that for all projects proposed for financing, ADB will conduct safeguards reviews as part of its due diligence. ADB is to confirm that “all key potential social and environmental impacts and risks of a project are identified; that “effective measures to avoid, minimize, mitigate or compensate for the adverse impacts are incorporated into the safeguard plans and project design”, and that “consultations with affected people are conducted in accordance with ADB requirements.”

26. ADB’s environmental and social due diligence for all TA phases was wholly insufficient and failed in respect of each of the above steps.

27. The Project Data Sheet for Phase 1 of the TA contains a short description of the Samoan system of customary land tenure and then goes on to describe the social issues related to the project as a “lack of public information on the practical workings of leasehold arrangements” and a “general perception that traditional landowners will not respect the rule of law if disputes arise.” Thus, it appears that the project designers identified the dearth of lease arrangements as the social issue rather than impacts on customary land tenure emanating from the TA. The treatment of social issues deteriorates in Phase II. The Project Data Sheet states in the section on social issues: “Promoting economic efficiency and enabling business environment, policy reforms and institutional development.” The section is left completely blank for Phase III. For all three phases the ADB determined that no issues arise relating to environmental aspects, involuntary resettlement and Indigenous Peoples.

28. Yet, social issues and concerns were identified early on during consultations undertaken under the TA projects. The Phase II TA Report cites, for example, “fears of alienation of customary ownership of lands”, “the rights of titleholders and heirs”, “rights of access to leaseholds”, and “the role of Government in the negotiation of leases” as concerns. These concerns, which should have been considered as having potential adverse social impacts and addressed accordingly, were not elaborated upon or dealt with through appropriate mitigation measures. The report states that the reform process must provide sufficient time for discussion with all stakeholders; however as explained below, the TA uses a community advocacy approach, rather than establishing a genuine process for meaningful consultations to shape reforms.

29. Rather than addressing the underlying concerns about adverse social impacts, project documentation identifies citizen opposition to the reforms as posing a risk to successful implementation, if the Government’s commitment to necessary reform is not strong enough to withstand adverse reactions. This risk is to be mitigated through an effective communications strategy. The ADB notes in relation to the Land Registration Act - the subject of a World Bank project, rather than the ADB TA - that:
Many fear that if the land is registered under the name of the matai of the day, the rest of the family risk losing their rights over the said land. The Government has continually assured the public that customary land will not be registered under the Torrens system as required by the Act. However, the Government should either incorporate such assurances through an amendment of the legislation, or propose an alternative registration mechanism like through a family trust arrangement. It is critical therefore that civil society and NGOs be engaged in discussions and consultations.

30. However, the ADB fails to articulate that the very same fear exists in relation to long- term leasing of customary land in the name of the matai of the day. Consequently it fails to incorporate its own advice to the Government in relation to mitigating social concerns and risks into its own projects. Instead, it once again relies on a “communications strategy [to] convey the message that mobilizing customary land for economic purposes is designed to deliver benefits to customary landowners and will not deprive them of their rights.”

Lack of meaningful of consultation:
31. The SPS states that for policy application meaningful consultation is a process that, inter alia, begins early in the project preparation stage and is carried out on an ongoing basis throughout the project cycle; provides timely disclosure of relevant and adequate information that is readily accessible to affected people; is gender inclusive; and enables the incorporation of all relevant views of affected people and other stakeholders into the decision making, such as project design, mitigation measures, the sharing of development benefits and opportunities, and implementation issues.

32. The process of consultation has failed to meet this standard throughout the three TA project phases and in relation to the Agribusiness Support project. The Phase I TA completion report notes that the original budget allocation for consultation was inadequate and needed to be revised. Then, rather than describing the activity as a process of consultation it refers to a “public information and education campaign to encourage landowners to lease customary land for economic uses.” The persuasive rather than consultative nature of the campaign is evidenced by the evaluation of outputs in the completion report, which opines:
While much has been achieved in stimulating debate on many issues concerning increasing economic use of customary lands, more must be done to advance the agenda and provide support for those who share the view that this is necessary for the social and economic development of Samoa. As the Government plans for changes are clarified, the public need to be informed of these changes and landholders and investors made aware of the opportunities that open up by developing customary lands. One of the priority recommendations of the program implementation plan is for effective and continuing community advocacy.

33. The shift to the term “community advocacy” rather than ‘consultation’ persists throughout phase II of the project. The Phase II TA Report notes that one of the lessons from the first phase was “an appreciation of the sensitivity of land issues,” which, the report says, requires a “gradual approach” and the need for ongoing and effective community advocacy.” This suggests the use of a public relations campaign to persuade Samoan citizens to support a predetermined set of objectives and outcomes rather than a meaningful consultation process leading to the consideration of legitimate concerns about adverse social impacts relating to land tenure and cultural identity. Fears of changes to customary land tenure systems and attendant adverse social impacts are further minimized and belittled by the single indicator used to measure the effectiveness of community advocacy: “increased number of requests from the public for information per month.” Although the Phase III TA Report states that consultations with civil society and NGOs will be done regularly, no detail or process is provided.

34. In practice, such discussions have not occurred, but have rather been filtered and diluted through the CLAC, effectively an ‘echo chamber’ for ADB technocrats. While the CLAC is ostensibly an advisory body, with a statutory function of consulting and advising the public, the reality is that there is no mandate for the CLAC to give advice that is contrary to the predetermined set of reforms - a condition of ADB loans - even if it finds there is a good reason to caution and advise Cabinet against the reforms.

35. Public consultation sessions that have been held were more like information sessions and did not solicit a range of views and opinions. These consultations occurred through the leadership of the Chairman of the National Council of Churches, which was not conducive to meaningful consultations because of the high degree of reverence to the church and respect for leaders, whose views people do not wish to directly oppose or challenge.

36. According to ADB’s website, the Government and civil society organizations (including the Chamber of Commerce, the Samoa Association of Manufacturers and Exporters, and the Samoa Farmers Association) were consulted during preparation of the Agribusiness Support Project. Despite the potential implications for customary land tenure, matai, crucial stakeholders, were not provided with any information or consulted prior to the approval of the project.

37. Even now that the project has been approved, several crucial pieces of information remain undisclosed, including the Environmental and Social Management System Arrangement and the Due Diligence of ANZ (Samoa). These documents represent important information for stakeholders, since without them we are unable to assess whether ANZ and other financial intermediaries are equipped to deal with social risks - including adverse impacts on land tenure or default on loans that could lead to the dispossession of aiga from parts of their customary land. The failure to make this information available to the public impedes meaningful consultation throughout the project cycle as required by the SPS.

38. As matais and concerned members of civil society, we have been patently marginalized from decision-making processes and have absolutely not been meaningfully consulted about these reforms.

Failure to apply Indigenous Peoples Safeguards:
39. The Indigenous Peoples Safeguards were not triggered for any of the TA phases nor the agribusiness project.

40. Pursuant to the SPS, the Indigenous Peoples Safeguards are to be triggered if a project directly or indirectly affects the dignity, human rights, livelihood systems, or culture of Indigenous Peoples or affects the territories or natural or cultural resources that Indigenous Peoples own, use, occupy, or claim as an ancestral domain or asset. The ADB Indigenous Peoples Good Practices Sourcebook clarifies that the Indigenous Peoples safeguards are triggered when a project has either positive or negative effects on Indigenous Peoples. There can be no question as to whether the TAs and the proposed agribusiness project affects customary territories, as they explicitly aim to do so. The fa’aSamoa and the customary tenure systems of the people of Samoa, and of each aiga, are extremely vulnerable to the very reforms being conducted by the TA.

41. The Samoan people self-identify as an Indigenous Peoples, and are regarded as such by the United Nations Permanent Forum on Indigenous Issues and by the World Bank, which has recently triggered its Indigenous Peoples Policy (containing an identical definition of ‘Indigenous Peoples’ to the ADB SPS), in relation to a project in Samoa called the Agriculture and Fisheries Cyclone Response Project. This project aims simply to assist farmers and fishers to repair/replace damaged and lost farm assets, and thus has far fewer implications for customary land tenure than the ADB’s projects that are the subject of this complaint. The World Bank’s Integrated Safeguards Data Sheet for the project states: “The inhabitants in Samoa are indigenous to the islands with customs and traditions that have largely remained intact and which are reflected in their current political and economic institutions such the village system and the traditional land ownership system based on customary laws.”

42. By failing to trigger the Indigenous Peoples Policy and take the appropriate measures that the policy requires, ADB has not complied with the requirements of the Safeguard Policy Statement (2009) and Bank Procedures on the Incorporation of Social Dimensions into ADB Operations (OM Section C3/OP).

Financial Intermediary Safeguards:
43. The ADB is required to conduct due diligence to assess potential social impacts and risks associated with a financial intermediary’s likely future portfolios. This should include potential impacts of subprojects (agribusinesses) on customary land tenure. According to the Initial Poverty and Social Analysis of the Agribusiness Support Project, the ADB categorized the Project as FI-C for involuntary resettlement and indigenous peoples indicating an assessment that there are minimal or no risks. The form asks whether the proposed project has “the potential to directly or indirectly affect the dignity, human rights, livelihood systems, or culture of indigenous peoples”; and whether it affects “the territories or natural and cultural resources indigenous peoples own, use, occupy, or claim, as their ancestral domain.” According to the form, Management does not believe that that the proposed project has the potential to have such affects. This is a clear mis-categorization given the obvious impacts on customary lands of the project, both alone and in connection with the set of TAs.

44. As an FI project, the FIs are required to have in place or establish an appropriate environmental and social management system (ESMS) commensurate with the nature and risks of the FI’s likely future portfolio. The project report states that the financing instruments will be open to all Samoan banks if they meet eligibility requirements and due diligence requirements including “adequate policies, systems, and procedures to assess and monitor the economic, social, and environmental impact of subprojects.” It also refers to the ESMS in paragraph 36 and 37, but no detail is provided. Given the fact that the key social risks - including the use of customary land leases as collateral without the free prior and informed consent of the aiga and default on loans that could lead to dispossession – have not even been identified in ADB project documentation, it is highly unlikely that an ESMS would apply effective safeguards to prevent these risks from materializing. Although we are not privy to ESMS documentation, we believe that it is probable that the ESMS of ANZ (Samoa), the predetermined FI for the project, is not appropriate or commensurate with the nature and risks of the likely portfolio, as required by the SPS, paragraph 65.

IV. Remedies sought
45. All further reforms should be halted and a full and meaningful country-wide consultation should be carried out by the ADB on reforms that it has supported and any future action or proposals, including actions underway or proposed under the TA Promoting Economic Use of Customary Land Phase III and Agribusiness Support Project. Consultations should ensure people across the country are aware of the reforms and actions and how they may be affected. People should have an opportunity to provide their opinions, which should be genuinely taken into account in decision-making. Importantly, the consultations should be structured in such a way as to encourage and facilitate the expression and discussion of a range of ideas and options for enhancing customary land productivity.

46. These consultations should be undertaken by an independent team, with financial assistance from the ADB. The consultation process must fully satisfy the requirements of ADB’s safeguards for Indigenous Peoples.

47. We further seek disclosure of all relevant documentation, including the Environmental and Social Management System Arrangement and the Due Diligence of ANZ (Samoa), as well as a commitment that this documentation will be made publicly available for all other financial intermediaries of the Agriculture Support Project. ESMS Arrangements should be subject to consultation with representatives of customary landowners.

V. Efforts to address our grievances with the ADB Operations Department
48. We have previously raised our concerns with ADB staff but have not received a satisfactory response. In a letter to ADB dated 19 December 2013, published in full by the Sunday Samoan Observer of 29 December 2013,38 we set out our concerns regarding ADB’s efforts to dismantle our system of customary land tenure. The letter was acknowledged by Caroline Currie, Head of Economics and Programming Unit for the ADB South Pacific Subregional Office, on December 27. Following three follow-up emails, ADB finally sent a substantive response to the letter two months later on 20 February 2014. The one-page letter was dismissive of our concerns and directed us to “speak with the CLAC” about them rather than ADB.

49. In a letter to ADB dated 3 August 2014, we set out our concerns regarding the Agribusiness Support Project. We were not aware that by that time the project had already been approved, and we requested that we be furnished with information and provided with an opportunity to provide our views. ADB responded on 7 August. The letter states that “ADB’s rigorous safeguards will be applied throughout the life of the project,” but no invitation was extended to us to express our views and no mention was made of consultations about the project.

50. Our letters of 19 December 2013 and 3 August 2014 and ADB’s responses of 21 February 2014 and 7 August 2013 are attached as annexes to this complaint.

51. We now request that the Office of the Special Project Facilitator attempt to find a solution to our grievances in the manner outlined in section IV. Should this process not be successful in addressing the problems to our satisfaction, we request that this complaint be forwarded to the Compliance Review Panel to investigate whether ADB has complied with its operational policies and procedures regarding the aforementioned projects.

Yours sincerely,
Leuluaialii Tasi Malifa - matai (chief) of Afega village, Upolu/lawyer/Libra Law
Lilomaiava Ken Lameta – chief of the villages of Vaimoso, Upolu Island/Safotu, Savaii Island/Veterinarian/Chairman of Board of Directors for Ole Siosiomaga Society Incorporated
Dr. Telei’ai Sapa Saifaleupolu – chief of the villages of Samatau, Upolu/consultant
Fiu Mata’ese Elisara – chief of the village of Sili, Savaii/Executive Director of Ole Siosiomaga Society Incorporated