“If land is lost, so will the matai system and culture of Samoa”

Prime Minister, Tuilaepa Sa’ilele Malielegaoi’s government has again been warned about the implications of promoting the economic use of customary land.

“Land in Samoan culture is regarded as an inheritance from God and connected intimately to the matai system,” the government is told. “The fear is that if land is lost so will the matai system, hence also the culture of Samoa.”

The warning is contained in a report from the Asian Development Bank (A.D.B), which had been tasked to investigate a complaint by a group of matai claiming that the government’s plan – with assistance from A.D.B - could alienate 80 per cent of customary land in Samoa.

The group is made up of four prominent village matai, Fiu Mataese Elisara, of Sili, Leuleuiali’i Tasi Malifa, of Afega, Tele’ai Dr. Sapa Saifaleupolu and Liliomaiava Ken Lameta of Vaimoso and Safotu.

“The complainants are of the opinion that promoting just the economic aspect of customary lands is contrary to Samoa’s commitment to sustainable development,” reads a copy of the report obtained by the Sunday Samoan.

“They fear that the environmental, social and cultural pillars of sustainable development will be ignored if economics takes the highest priority.

“It is their opinion, that there are more effective land-use approaches which are more sustainable.

Although these approaches may not bring economic gains it may help maintain food security at the community level for generations.”

Leasing of customary land to secure a mortgage, according to the complainants, comes close to alienation of customary land.

“Furthermore, there may be unintended consequences to governance and social welfare systems because customary land is a cornerstone of these systems,” the report reads.

The group also claimed that meaningful consultation regarding the reforms brought about by the projects has been lacking.

“The reforms must take into account the social and cultural aspects of customary land tenure.

Consultations should not only define the leasing mechanisms for customary land and its economic benefits, but also discuss the risks involved such as the loss and destruction of ecosystems.

“Another concerned raised is to do with the Customary Lands Advisory Commission (CLAC). While CLAC is an advisory body with a function of consulting and advising the public regarding the reforms, the complainants allege that CLAC has no mandate to give advice that is contrary to the predetermined set of reforms even it may find good reason to caution and/or advise Cabinet against the reforms.”

Two months ago, the Samoa Observer obtained a brief summary of the report, urging the government to ensure that the community is engaged so that the outcome “reflects community needs, views, and aspirations.”

The summary went on to say that “not many people in the business community have heard or know about the project and how it can help economic development in Samoa.”

Asked for a comment at the time, Prime Minister Tuilaepa rejected the claim that the government did not consult members of the public properly. He said the claim that the consultation process was not thorough is wrong.

“The consultation has been done and those people who keep digging it up don't understand,” he said. “They are probably stirring things up for a personal agenda to get money. But there were consultations and a Committee was called.”

According to Tuilaepa, the Committee in question was chaired by the late Revered Elder Oka Fauolo.

“The Committee did their work here (in Upolu) and they also went to Savai’i,” he said.

“From their report, the majority of people in the country supported the lease of customary lands.”

The Prime Minister said the problem with the world today is that “there are too many professors.”

He added that the group of matai, which has lodged a complaint with the A.D.B with regards to the economic use of customary land, refuses to understand the process of leasing customary land.

Here is a copy of the Review Assessment Report of the Special Project Facilitator on Promoting the Economic Use of Customary Land.

BACKGROUND

A. THE PROJECTS

Promoting Economic Use of Customary Land

1. The Government of Samoa sees the increased economic use of customary lands as important for achieving further economic development.

The Strategy for the Development of Samoa since 2005 has focused on “land for development” as an objective to increase economic and social development opportunities for communities, while being environmentally sustainable. The technical assistance (TA) on Economic Use of Customary Land Phases I, II, and III; and the grant for AgriBusiness Support Project have been approved by the Asian Development Bank (ADB) to assist the Government’s efforts to encourage growth in Samoa by supporting greater investment through the use of leased customary land as collateral for financing. ADB’s support has focused on appropriate reforms to mobilize and securitize customary land.

2. The Independent State of Samoa: Promoting Economic Use of Customary Land, Phase III TA was approved by the President of ADB on 10 October 2013. Phase I of the TA was approved on 5 December 2005 and Phase II on 23 November 2009. The purpose of the successive phases of the TA has been to assist the Government’s efforts to encourage growth and jobs in Samoa by supporting greater investment through the use of leased customary land as collateral for financing. The Ministry of Finance is the executing agency, while the implementing agencies are the Ministry of Natural Resources and Environment (MNRE) and the Ministry of Justice and Courts Administration.

3. Phase I of the TA aimed to improve the policy and legislative environment for small business development. It established and supported a working group on the economic use of customary land with representatives of the Government, the private sector, and the community, which submitted a report to the Cabinet recommending activities to promote the economic use of customary land. The T A supported

(i) stakeholder consultations, (ii) the drafting of amendments to legislation relating to customary lands, and (iii) streamlining of all processes to encourage the economic use of customary land in Samoa;

(iv) developed and implemented a public information and education campaign to encourage landowners to lease customary land for economic uses;

(v) developed and implemented a nationally coordinated policy and strategy to encourage economic use of customary land in Samoa; and (vi) prepared a program implementation plan (PIP) to guide and follow up work on customary land reforms. The Cabinet endorsed the six priority areas in the PIP, and the Government requested further support from ADB to implement these reforms.

4. Phase II of the TA supported the implementation of the priority areas identified in the PIP. Phase II, however, was fraught with many challenges and brought about mixed output results. It was confronted with capacity constraints, inadequate resourcing, delayed establishment of the Customary Land Advisory Commission (CLAC), and the late identification and procurement of additional inputs for essential legal services. The TA was planned to be closed in 2011 but did so only in 2013.

5. Phase III will continue advising the Cabinet in promoting the economic use of customary land; conducting public consultations on areas that will require reform; and reviewing all laws on customary land in Samoa and making recommendations to the Cabinet for changes in them.

AgriBusiness Support Project 6. The objectives of the Samoa AgriBusiness Support Project are to (i) increase agriculture/ Agribusiness contributions to the economy; (ii) improve the balance of trade and increase self-employment opportunities in rural areas; and (iii) increase formal employment in agroprocessing enterprises, mainly in urban Apia.

The Project will provide financing and business support services to 10–15 Agribusinesses and their employees, suppliers, and contractors. This is expected to generate broader opportunities for a wide range of Samoan farmers to supply inputs for new or expanding Agribusinesses. The financing component is intended to overcome constraints faced by small and medium-sized enterprises, including limited collateral and capital.

Participating financial institutions will provide subloans to eligible Agribusinesses, with ADB funds providing cash collateral to secure up to 50% of such loans. ADB funding will also provide up to 25% of total subproject costs in repayable supplemental seed capital, provided as “quasi-equity” in a business, and can be used only if the business would then qualify for a loan. Commercial banks will then finance the remaining portion of the project according to their own standards. The financing component will be complemented by business advisory services.

B. THE COMPLAINT

7. On 9 September 2014, the Office of the Special Project Facilitator (OSPF) received a complaint (Appendix 1) from four matais of Samoa regarding ADB’s TA for Promoting the Economic Use of Customary Land and the grant for the AgriBusiness Support Project.1 The complaint was written in English, and the signatories did not request confidentiality.

OSPF acknowledged receipt and registered the complaint on 9 September 2014. The complainants raised concerns about the cumulative long term impact of the ADB interventions that according to them will be severely detrimental to the Samoan people.

8. The complainants are of the opinion that promoting just the economic aspect if customary lands is contrary to Samoa’s commitment to sustainable development.

They fear that the environmental, social and cultural pillars of sustainable development will be ignored if economics takes the highest priority. It is their opinion, that there are more effective land-use approaches which are more sustainable. Although these approaches may not bring economic gains it may help maintain food security at the community level for generations.

9. Leasing of customary land to secure a mortgage according to the complainants comes close to alienation of customary land.

Land in Samoan culture is regarded as an inheritance from God and connected intimately to the matai system. The fear is that if land is lost so will the matai system, hence also the culture of Samoa. Furthermore, there may be unintended consequences to governance and social welfare systems because customary land is a cornerstone of these systems.

10. Meaningful consultation regarding the reforms brought about by the projects has been lacking. The reforms must take into account the social and cultural aspects of customary land tenure. Consultations should not only define the leasing mechanisms for customary land and its economic benefits, but also discuss the risks involved such as the loss and destruction of ecosystems.

11. Another concerned raised is to do with the Customary Lands Advisory Commission (CLAC). While CLAC is an advisory body with a function of consulting and advising the public regarding the reforms, the complainants allege that CLAC has no mandate to give advice that is contrary to the predetermined set of reforms even if it may find good reason to caution and/ or advise Cabinet against the reforms.

C. DETERMINATION OF ELIGIBILITY

12. OSPF did a desk review of the projects and held discussions with the complainants, ADB staff, and consultants on the complaint. The complaint met OSPF’s eligibility requirements and was declared eligible on 29 September 2014.

II. REVIEW AND ASSESSMENT A. OBJECTIVES AND METHODOLOGY

13. A review and assessment mission was held in Samoa from 17 November to 1 December 2014. The objectives of the review and assessment were to explore the history of the complaint, confirm the key stakeholders, identify the main issues of the complaint, explore the stakeholders' readiness for joint problem solving, and recommend a course of action. The review and assessment included (i) documentation review, (ii) one-on-one and group interviews, (iii) workshops, and (iv) a roundtable discussion. The one on one interviews and group discussions which totaled a number of 33 persons, sought to verify the knowledge of the people interviewed of the project, the issues surrounding project and their opinions about the economic use of customary land. Workshops were organized to consult with communities from the villages in both islands of Upolu and Savaii. 234 people from 151 villages attended the workshop in Upolu while 139 people came from 79 villages in Savaii. Objectives of the workshop were to verify if people had attended past consultations organized by the project and government, if people understood the content of those consultations, and what questions or issues people still have regarding the economic use of customary land. The roundtable discussion included representatives from the Government, ADB, and the complainants with the purpose of clarifying issues of concern and identifying a way forward to resolve the issues. The mission also met with the Deputy Prime Minister for a debriefing on its activities and results.

B. IDENTIFICATION OF STAKEHOLDERS

14. The formal complainants are the four signatories to the complaint letter, who are matais from villages in the islands of Upolu and Savaii. Other stakeholders identified and met included (i) staff from the project implementing agencies, (ii) ADB consultants involved in both projects, (iii) chief executive officers (CEOs) of project participating banks (ANZ and Westpac), (iv) the National Council of Churches, (v) CLAC, (vi) the CEO of the Samoa National Provident Fund, (vii) the Attorney General of Samoa, (viii) the President of the Law Society, (ix) the CEO of the Ministry of Finance and Attorney General, (x) one individual with an ongoing lease using customary land, and (xi) one farmer interested in leasing land.

C. ASSESSMENT OF ISSUES

15. The Government of Samoa is fully committed to its policy of achieving economic use of customary lands by providing the enabling environment to facilitate the leasing of land, as an option, should the landowners not wish to develop the land themselves. This priority of the Government is reflected in the Strategy for the Development of Samoa 2008– 2012 and 2012– 2016.3

16. The leasing of customary land for economic use is a viable option, but the nature of issues related to the leasing of customary land is not easily seen or agreed upon among stakeholders. The risk of not getting the changes right (i.e. not having safeguards in place to address environmental, cultural and governance challenges), many fear, could threaten one of the key principles of Samoan culture. It is not surprising, then, that the process by which these changes need to be considered, accepted, and implemented must be carefully and widely discussed.

17. The section below presents the issues that are still under debate regarding legislative reforms.

Leasing of Customary Land as Collateral 18. The Government and ADB confirm that, while the Government is focusing on enabling leases of customary land to be used as security for loans, the underlying interest in the land itself will not and cannot be used as security. According to government, this has been well understood by all individuals that have participated or collaborated with government during various phases of the Project. However, risks associated with leasing needs to be clarified and discussed more at length for better understanding of the wider public.

19. It must be recognized that the leasing of customary land has always been available to Samoan matais since the coming into force of the Alienation of Customary Land Act 1965 (“the Act”) which is a legislation that permits the leasing and licensing of customary land for authorized purposes such as agricultural, business, public, hotel, industrial, commercial or religious.

20. Section 4 (4) of the Act specifically stipulates that “nothing in this Act may be construed or implied to permit the alienation or disposition of customary land in a manner prohibited by Article102 of the Constitution or 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.”

21. It remains clear that at its highest, the Supreme Law of Samoa which is the Constitution affords protection to maintaining non-alienable status of customary lands in Samoa. This is further congealed by Article 109 of the Constitution which states any amendment to this provision will require a referendum, of which two thirds of the valid votes must be polled, before Article 102 may be amended. This essentially refers to a public referendum.

22. The Government introduced the Land and Titles Registration Act (LTRA) in 2008 to allow easier processing of matters relating to various land interest registration in Samoa.

It changed the land registration system from what had been a deed system to a Torrens system. Sections 9(4) and (5) of the LTRA emphasize that the Act does not change the inalienability of customary land and does not change ownership of customary land. 23. Section 10 of the LTRA, however, has created some controversies and misunderstanding. MNRE intends to amend Section 10 to clarify that customary lands are not registered with other types of lands under the Land Register kept according to Section 10 of the Act. While a record of customary land can be maintained by the Registrar of Lands, such record is not to be treated as being part of the ordinary folios wherein freehold lands and government lands (including leasehold interest in customary lands) are registered.

24. Despite statements that the LTRA is compliant with the Constitution, there are opinions that the LTRA has provisions contradicting this position. Some are of the opinion that these provisions are unconstitutional and present a difficult legal situation. It is feared that following the LTRA, in practice, will lead to deviations from constitutional standards that may slowly wear away the foundations of the concept of customary land and lead to its alienation.

25. The Alienation of Customary Land Act (ACLA) of 1965 was also amended to make clear that only leasehold interest on customary lands could be mortgaged. Since the mortgage is over the “leasehold interest” and not over the “land,” there is no threat to the ownership of customary land. Section 15(4) specifically clarifies that customary land is not to be alienated in any way as provided for under the Constitution.

26. However, there is the fear associated with the use of land as collateral in that mortgagees would acquire ownership by exercise of the power of sale or foreclosure.

An essential element of allowing successful leasing of land is a clear end of lease and/or foreclosure process.

27. The matai is the titular head of every aiga4 (family) and trustee of the family land.

The matai therefore stands in a fiduciary relationship toward the family members who, along with the matai, are the beneficiaries of the customary land trust. In all customary land matters, therefore, the matai represents the interests of his family; he acts on behalf of his family and he holds customary land on their behalf; every member of the family including himself shares in this trust ownership of customary land.

28. With the matai assuming full control of customary lands, it is not unusual to find a matai using the benefits from customary land— whether by way of leasing, licensing, or compensation from the taking of customary land by the Government for public purposes— for himself and his immediate family to the exclusion of other beneficial owners. While the law is designed for the matai to receive the rents or compensation, it does not provide safeguards on how this money should be used by the matai in recognition of his position as trustee of the aiga. Sharing the rewards and benefits from leasing and licensing of customary lands among the beneficial owners should be central to the new reforms, addressed through wide consultation with the people. This will necessitate changes in the law to provide mechanisms to ensure the equitable sharing of benefits by customary landowners instead of the matai alone enjoying the funds generated through rentals from leasing and licensing of customary land.

29. To support the mortgaging of customary leasehold, there is a need to put in place a lease framework. All issues relevant to the leasing of customary land should be considered, with problems identified and addressed. The fundamental rights of customary landowners must be addressed to ensure that those rights are protected whenever their lands are leased.

Some issues to be considered are time frames for the expiry of leases and options for the lessee regarding the takeover of improvements/fixtures after the lease expires.

30. Different lending institutions have different requirements and procedures for loans. The people need to be aware of the legal processes for entering into leases. The project should therefore develop policies to align and strengthen relevant laws for consistency.

AgriBusiness Support Project 31. Similarly, the AgriBusiness Support Project is designed to operate under Samoa’s land law and framework. It is designed to reduce the amount of collateral required from participating AgriBusiness to secure commercial financing. Since loans are difficult to obtain for small to medium-sized enterprises due to insufficient acceptable collateral, and limited ownership capital, the Project will partly secure loans (up to 50%) to address inadequate collateral. Furthermore the Project will also provide supplemental seed capital to enterprises to add to insufficient owner’s funds and weak balance sheets in enterprises seeking business expansion.

32. The banking sector confirmed that the objective of the land reforms in Samoa is to make customary land leases bankable. It was also confirmed that land will not be used as collateral.

No loans have as yet been provided under this Project, and when it does so, it will be to support only a small number of businesses.

33. Strict procedures in relation to environmental and social safeguards have been developed by the Project, consistent with ADB’s 2009 Safeguards Policy Statement. These procedures are elaborated on in the Project’s Environmental and Social Management System (ESMS).5 The ESMS was established as the criterion for screening and selecting loan applications based on their likely environmental, indigenous peoples, involuntary resettlement, and social impacts. Only businesses that are not included in the environmental exclusion list (Appendix 2) and categorized as category C (projects that are likely to have minimal or no adverse environmental impacts) will be selected.

34. The Project should, however, acknowledge that use of customary land is a potential issue in the development of commercial agriculture due to its link with rural communities that supply raw materials. This could bring about changes in the use of customary land, generally by converting idle farmlands to productive uses. In the event that a business would need to acquire a lease on customary land, safeguard mechanisms will be required to ensure free and prior consent by customary landowners and documentation of this consent in the lease agreement.

35. A grievance redress mechanism (GRM)6 has been established for the Project and will be incorporated into safeguards documents. The GRM will provide a process for the project manager to receive, evaluate, and facilitate the resolution of affected people’s concerns, complaints, and grievances about the environmental and social performance of the Project and its activities and investments. The GRM has not been tested and in time will require assessment of its performance for further refinement.

Consultations 36. The Government, ADB, and consultants involved in the TA reported that extensive community consultations were conducted to inform the public about the policy of leasing customary lands and to seek public views toward the policy. Phase I of the project comprised 20 consultations, 13 in Upolu and 7 in Savaii. Phase II included 4 consultations, 2 in Upolu and 2 in Savaii. Given the issues of time and cost, some districts were combined together for one session in a village central to all. According to government, a myriad of issues covered were well received from the members of the public and communities urging the need for transformation in current statutory processes and procedures affecting the use of customary land leases.

37. Despite the absence of actual documentation of consultations held, issues and concerns highlighted during the consultations as reported by ADB consultants include (i) fears of alienation of customary ownership of lands, (ii) the rights of titleholders and heirs (including the Samoan diaspora), (iii) mortgaging of leaseholds, (iv) rights of access to leaseholds, (v) the role of the Government in the negotiation of leases, and (vi) the establishment of family trusts to either develop the land themselves or to lease lands and share income from lease payments.

38. Discussions with communities and complainants suggest that, while consultations have occurred, only a few recalled these consultations and the issues discussed. The majority of communities consulted by OSPF did not have much awareness or knowledge about the leasing of customary land as collateral. While all agree that making productive use of their land is a welcome move, many had questions regarding the leasing arrangements and details.

Many expressed the need for special safeguards for landowners to ensure their social, environment and economic security and to prevent negative effects.

39. The communities and complainants are urging the Government and ADB to consult and involve them throughout the reform process. In addition, they have voiced that the Government should not simply inform people and organizations about land policy reform without allowing them to have the chance to shape it.

Consultative and inclusive approaches should involve disseminating information (which includes options, benefits and risks involved), encouraging debate, holding public meetings, and holding regular discussions among interested groups, experts, and government ministries. Meaningful consultation and participation should be part of all components of the reform process. It must be driven by a wide and representative group of people interested in and directly affected by the outcome—with the support of the Government. Only by working constructively together will the people develop innovative land policies.

Customary Lands Advisory Commission 40. The Implementation Strategy and Plan (ISP) as endorsed by Cabinet in 2009 paved the way for progressing land reforms and changes to legislation.

The main components of the ISP are: (i) national coordination of customary land stakeholders; (ii) financing development on customary land; (iii) legislative reforms; (iv) capacity building to support customary land administration reforms; (v) effective community advocacy; and (vi) monitoring and evaluation.

41. The first component of the ISP has been fulfilled in that CLAC came on board in 2013 and through the commencement of the Customary Land Advisory Commission Act 2014. The work of CLAC is premised mainly on leading the land reforms to increase the economic use of customary land and coordinate the efforts of all stakeholders involved in reforming customary land use. Component (iii) is current and critically important in ensuring that all the previous deliberations and consultations are enshrined into legal reforms currently drafted. Components (iv), (v), and (vi) are closely linked to the work considered with government under Phase III. A key phase of the project as it aims to finalize the communications and consultation strategy as required under the ISP.

42. The establishment of a wellfunctioning secretariat therefore, will greatly assist the project team with implementation of the TA. There will be a need for the CLAC to be adequately staffed, given the amount of work that will be generated in the development of a leasing framework, the nature of the issues to be addressed, and the capacity development required to ensure sustainability when the project comes to a close. Delays in establishing the CLAC, and a functioning and financed secretariat, already reflect poorly on the public service. Furthermore, the CLAC does not have sufficient budget for consultations, which may seriously impede much- needed process for achieving the legislative framework.

III RECOMMENDATIONS AND PROPOSED COURSE OF ACTION A. Recommendations for the TAs Promoting Economic Use of Customary Land 43. Meaningful Consultations.

The community and stakeholders need to be engaged in the reform process to ensure that it reflects community needs, views, and aspirations. Acceptance and ownership by landowners and the community of the reforms are essential if the Government is to achieve its goals and objectives of developing customary land as a means of economic progress. The project must therefore allocate sufficient resources to engage an independent expert to design and implement a consultation/communication strategy.

This strategy must be based on the principle that the consultation process is an opportunity to provide information about key issues and their implications to foster better understanding and to allow those affected by the decision to have meaningful and substantive opportunities to influence the final decisions. The strategy can be guided by ADB’s safeguards’ policy statement on consultation and participation which refers to a process that (i) begins early in the project preparation stage and is carried out on an ongoing basis throughout the project cycle; (ii) provides timely disclosure of relevant and adequate information that is understandable and readily accessible to affected people; (iii) is undertaken in an atmosphere free of intimidation or coercion; (iv) is gender inclusive and responsive, and tailored to the needs of disadvantaged and vulnerable groups; and (v) enables the incorporation of all relevant views of affected people and other stakeholders into decision making, such as project design, mitigation measures, the sharing of development benefits and opportunities, and implementation issues.

44. Stakeholder analysis is an important element to be considered in developing the strategy in order to provide information on and analysis of stakeholders' interests and power to promote or derail the reform and to identify crucial stakeholders to reach at different stages of the reform.

With an in-depth analysis of the stakeholders, the strategy should be able to characterize the audiences and identify appropriate communicating channels and methodologies for eliciting participation.

45. Different means/modes of communication will be required for different audiences, and the strategy would benefit from providing more information on or justification for the extent of the chosen means/mode of communications coverage (e.g., how many people can be reached through television, radio, etc.); the frequency of use of such modes; and the credibility of the modes chosen (i.e., the perception by audiences or stakeholders that a given mode—radio, television, print—provides balanced reporting of events and that messages carried are not influenced by the Government or private sector groups that own and operate those modes or by advocacy groups that promote a specific perspective to the exclusion of other views). The messages for each mode of communication also need to be worked out in detail. Since the reform deals with many legal issues, simple language must be used to explain complex issues.

46. Lastly, the strategy must include a robust mechanism for feedback from participants in the consultation process. This mechanism must describe how it will collect and document feedback, analyzes it, and shares the results with the stakeholders. The proposal for meaningful consultation shared by the complainants should be referred to when developing this consultation strategy.

47. Legal Framework. In Phase III of the TA, the Government is looking at reviewing legislation, policies, and procedures to strengthen the leasing framework (through legal working groups). Discussions and questions raised during the review and assessment mission have helped identify further areas to consider for giving clarity to concerns raised in the complaint (especially on the process for and safeguards around foreclosure).

A consultation with the Samoa Law Society for the draft leasing framework should be conducted to receive broader legal community views and suggestions for improving the framework. This will help develop consensus among the legal community and avoid conflicting legal advice.

48. Community. MNRE is assisting landowners and investors in the development of customary land, including the drafting of customary land leases. Current practice has the matais signing off as trustees or custodians on behalf of the people. To safeguard community interests, MNRE should explore a consultative process to ensure participation of the wider community in the preparation of leases. This should be required before a lease is agreed upon, signed, and recorded. Advertising in the Savali7, as required by the ACLA, may be further reviewed and strengthened to ensure approval and endorsement by the customary landowners (not only matais as trustees). These steps will ensure broader agreement on the details of the lease, and transparency regarding the flow of rents and benefits to the people.

49. CLAC. Establishing and financing the CLAC as a secretariat has been delayed, which has jeopardized implementation of its objectives and recommendations related to the economic use of customary land TAs. The Government needs to fulfill its commitment by ensuring funding (staff and budget) for the CLAC. This is urgently needed for preparing the legislative framework. The CLAC should coordinate its consultation plans to ensure that it does not duplicate the broader communications and consultation strategy that will be developed based on this review and assessment report (RAR).

50. Pilots. The project should explore the possibility of pilot testing the reforms, particularly if it can be seen that the public has sufficient confidence to use the new legal framework to formalize old leases or issue new ones.

B. Recommendations for the Grant on AgriBusiness Support Project

51. The recommendations for the TA Phase III listed above will also provide clarity to the AgriBusiness Support Project. Specific further recommendations for Grant No. 0392 are as follows:

52. Awareness. Not many people in the business community have heard or know about the Project and how it can help economic development in Samoa. To raise awareness about the Project and how it can help reduce financial risk, targeted workshops with business communities, banks, and chambers of commerce should be organized. In addition, informative flyers and pamphlets with specific project examples and ideas would help alleviate fears and provide design options for businesses to consider. A launch of the Project is planned and should be held as soon as possible. It would be advisable at the launch to make clear that the Project will not include any leases of customary land at the start. This may take place only at a later stage when the leasing framework is ready and tested.

53. Types of Projects.

Discussions with the project team and two banks that have signed on to act as financial intermediaries indicate that they are looking for projects that are “type C” (projects with no resettlement or environmental impact). They do not anticipate use of customary land leases as collateral or for mortgages for the Project. In the future, if leases are to be included as collateral, the Project must develop and include consultative processes and procedures to ensure free and prior consent of landowners as stipulated in the ESMS.

C. Proposed Course of Action 54. The proposed activities are based on the RAR mission’s assessment and on stakeholders’ suggestions for OSPF involvement as a trusted independent facilitator.

55. Step 1. Communication and Consultation Strategy. ADB will support the Government to develop and implement a communication and consultation strategy including a consultation process to be followed.

This strategy should take into account suggestions made by the complainants in their proposal for meaningful consultation and other comments included in the RAR. The terms of reference for developing the communication and consultation strategy should be developed and circulated for comments.

56. Step 2. Multistakeholder Workshop. A multistakeholder workshop (MSW) that includes the Government, ADB, and other stakeholders should be held to agree on a plan of action based on recommendations made by OSPF. The MSW will confirm willingness to engage, reconfirm activities to be carried out in relation to the recommendations, identify leads for each activity, and include budgets and a time schedule.

As soon as complainants have decided on whether they want to continue with the OSPF problem-solving process, OSPF will organize the MSW including facilitating and documenting agreements.

57. Step 3. Consultation and Communication Strategy Workshop. A workshop including the Government, ADB, the complainants, and other stakeholders should be held with the purpose of discussing the draft communication and consultation strategy. The discussions should also include the development and agreement on the full range of issues to be discussed during consultations. The workshop will confirm the overall strategy and content, methodology, persons to be involved, and time frame for implementation. Once the strategy is finalized, the project will proceed to implement it. OSPF will organize and facilitate this workshop.

58. These recommendations and the proposed course of action represent a snapshot of the situation in Samoa during the review and assessment of OSPF. The ground realities may change by the time the stakeholders have a chance to comment on these recommendations and the proposed course of action.

59. With inputs from all stakeholders, OSPF will finalize the objectives and agendas for the workshops and other suggested activities. OSPF will provide assistance to all the parties in preparing visuals and other material required.

OSPF will cover transport costs for communities participating in the two suggested workshops. OSPF will organize and facilitate the workshops, and will document the agreements.