Customary land change raises fear

The President of O le Si'osi'omaga Society Incorporated (O.L.S.S.I.), Fiu Mataese Elisara, has warned against “hidden” changes to land laws, which he says risks customary rights being “sidewinked.”

The warning follows the set up of the Customary Land Advisory Commission – with a legally set role for Commissioners to be “good advocates” for the “economic use” of customary lands.

But Fiu says the government is using the new commission to also pass an amendment to the Alienation of Customary Land Act of 1965.

He points out that the 1965 Act was intended to promote the desires and best interests of customary land owners.

He is worried, however, about the new development, saying his “prime concern” is that those interests are being “sidewinked.”

Incorporating “for the first time” economic use of customary land, the new 2013 Act “succeeds remarkably” in legalising customary land alienation, said Fiu.

“And that, without doubt, is invariably the latest and hidden purpose in these laws,” he said.

Attorney General, Aumua Ming Leung Wai, defended the bill, saying there was no conflict between the commission’s ‘advisory’ role, and that of being an ‘advocate’ for economic use of customary land.

“We certainly don’t want to appoint a person to be a Commissioner who does not believe in the economic use of customary land,” said Aumua.

“This will defeat the purpose why the C.L.A.C. was created.”

His full comments are carried in full as part of a separate response, as follows.

For his part, Fiu detailed his concerns about the commission.

“First, we worry because the responsible Minister has the power to lease or license customary lands as trustee for customary land owners, and is likely, as in all such ministerial authority, to compromise and or abuse, and or even act politically than in the best interest of those customary land owners.

“He is not obligated legally to discuss a decision he makes in respect of use of customary land with the owners of the lands affected, as ‘... in his opinion’, he can grant such lease or licence or any interest therein.”

A law for the new Commission was passed in April last year. It is an “An Act to establish the Customary Land Advisory Commission to encourage, facilitate and promote greater economic use of customary land for the purpose of enhancing the social, cultural, economic and commercial development of Samoa and for related purposes.”

O.L.S.S.I. is focused on a “consequential amendment” that is the last of 15 sections under the Commission Act, and amends Section 4 of the Alienation of Customary Land Act 1965. It grants new powers, to the Minister of Natural Resources and Environment, affecting “customary” land, rather than just the “freehold” land as previously covered by Section 4.

Fiu acknowledges that the power of the minister is not his alone.

“His opinion must be in accordance with Samoan custom and usages, or the desire and interests of the beneficial owners of the land or interest.

“Therefore and since Samoan customs is not his alone, and or by himself, that opinion necessarily must be of all Samoa.

“And however subjective that Ministerial opinion shall come to be, it is still of all Samoans, and therefore cannot reasonably pass constitutional muster and scrutiny.” Being unconstitutional, the law is flawed, indicated Fiu.

“It follows the grant of such lease or licence or interest therein shall become purely political that of course, the Minister shall fall back onto.”

Fiu said that the changes to the land laws have come about due to pressure from A.D.B., the Asian Development Bank, to open up customary lands for economic use.

A.D.B. officials have made loans and grants conditional on the changes going ahead, he said. In fact, much of the language for the new Commission is “copied and pasted” from A.D.B project documents, said Fiu.

“Our understanding is C.L.A.C. was created in this way based on technical advice from the A.D.B. as part of Project 41173.

“It was paid for directly by the A.D.B.

“According to the A.D.B. documents, it helped prepare the strategy and goals, develop the terms of reference that helped select the three person commission members and other staff.

And the goal is to “...encourage, facilitate and promote greater economic use of customary land...” – the same language as the C.L.A.C, he said.

“It must be clearly understood that there is no mandate for C.L.A.C. to give advice to the contrary even if in their seven years of ‘...encouraging, facilitating, and promotion ...’, it finds there is good reason to caution and advise Cabinet against the use of customary lands for ‘economic‘ development.

The A.D.B., said Fiu, “tends to justify itself by saying that the Cabinet endorsed this action in 2009 when it presented some reports to them and that they are just acting by virtue of the ‘Strategy of Samoa’ published by the Ministry of Finance.”

Changing Samoan land law, however, was a condition for further lending by A.D.B. to the financial sector; and the Ministry of Finance will likely have been rejected further loans if this was not done, as set out by a 1998 policy document.

“It seems that the language in the so-called ‘Strategy of Samoa’ initially appeared in an A.D.B. document, copied and pasted into the Ministry of Finance Strategy,” said Fiu. “It is also interesting to see that the C.L.A.C. was passed only in April last year, 2013, when work on the economic use of customary land was already well under way.”

A.D.B. has not released any subsequent reports that state exactly who worked on these projects, he said.

“But we understand it is likely to be of the two representatives of consulting company, Vinstar Consulting, who of course, helped draft the land registry and other laws on this project for the ADB.”

The question is, he asked, was there local “anchorage” in terms of Samoan advice given to these consultants, and if there was, how were the people of this country informed and were they consulted?

O le Siosiomaga Society has been a long time critic of changes to customary land laws, warning that generations of tomorrow risk losing access to lands for a few loans and grants today.

Meanwhile, the “consequential amendment” to the Alienation of Customary Land Act 1965 reads:

15. Consequential amendment - Section 4 of the Alienation of Customary Land Act 1965 is amended:

(a) by renumbering the current provision as section 4(1);

(b) by adding the following new subsections:

“(2) For the avoidance of doubt, an interest in the lease or licence of customary land that the Minister can grant by subsection (1) includes a mortgage of the interest of the lessee or licensee.

(3) The process of registration and discharge of mortgages in the Land Titles Registration Act 2008 applies to the registration and discharge of such mortgages.

(4) Nothing in this Act may be construed or implied:

(a) to permit the alienation or disposition of customary land in a manner prohibited by Article 102 of the Constitution; or

(b) to permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the title to customary land.”