Aumua responds: There is no ‘new category’ of customary land

Questions were sent to Attorney General Aumua Ming Leung Wai regarding concerns raised by critics of changes to land laws, including the new Custom Land Advisory Commission Act. His responses are in full below.

Q. Critics say the “consequential amendment” of the Alienation of Customary Land Act 1965 was “hidden” away at the back of the Customary Land Advisory Commission Act 2013 - aren’t amendments usually given a bill of their own ?

Aumua:“It is normal law-making practice of any parliamentary system to have consequential amendments to other Acts in an Act that is enacted by it. An Act can be amended by another Act, particularly, if they relate to the same subject matter or related purpose. You will note both Acts deal with the same subject matter i.e. “customary land”. If you look at the Bills submitted to Parliament, consequential amendments (if needed) are towards the end of the Bill, e.g. check out the Crimes Act 2013, Land Titles Registration Act 2008, etc. The consequential amendments in the Crimes Act 2013 amended other Acts such as Acts Interpretation Act, Criminal Procedure Act and Indecent Publication Ordinance. The consequential amendments in the Land Titles Registration Act amended the Property Law Act and Alienation of Freehold Land Act. Consequential amendments of other Acts can appear towards the end of a Bill when such amendment is needed and relevant to the Bill. Please note that there are also stand alone Bills drafted for the sole purpose of amending an Act e.g. Road Traffic Amendment Act 2013 to amend the Road Traffic Ordinance 1960. Be that as it may, the short answer to your question is that amendments are not usually given a Bill of their own (as that would depend on the type and extent of amendment required).”

Q. Section 4 of the Alienation of Customary Land Act 1965 refers to “leasehold” and “customary” land but the consequential amendment inserts a new category of “customary” land - is this a significant new area for the act to be given under ministerial power?

Aumua:“There is no ‘new category’ of customary land being created. The consequential amendment aims to provide extra clarity. Section 4(1) (which existed since the year 1965) already allows the Minister to grant a lease or licence of a customary land, including any interest therein (ie, an interest in such lease or licence). One such interest includes a mortgage over a lease or licence of customary land (as now clarified by the amendment). The amendment clarifies such interest so as to remove any doubt that may have existed. It is hoped that with such extra clarity, there will be more confidence to use the lease (of a customary land) as security (or part thereof) for a loan. This will hopefully enable our people to develop their customary lands if they so wish. But please note that the mortgage is over the “leasehold interest” and not the “customary land”. This means that if the borrower defaults, the bank simply takes over the lease. It is not like mortgages over freehold land where the bank can take the land and sell it following foreclosure.”

Q. Government has previously referred to the protections under the Constitution for customary land owners - but constitutional cases are extremely expensive, thereby rendering those protections beyond the reach of most landowners?

Aumua:“Article 102 of the Constitution is clear that we cannot alienate (sell) customary land. Our Government has no intention to allow the alienation of customary land. The new section 4(4) of the Alienation of Customary Land Act introduced by the consequential amendment discussed above clearly reflects this position and even restates Article 102 of our Constitution.”

Q. Given the sensitivities surrounding the issue of customary land why did government not seek to better consult with the public and put CLAC through the Samoa Law Reform Commission?

Aumua:“The CLAC came about after extensive public consultations both here in Upolu and in Savaii. Please ask MNRE for details. Not all public consultations have to go through the Law Reform Commission. Currently, there are public consultations being led by MWCSD. regarding the Child Care and Protection Bill.”

Q. Commissions are supposed to be independent of the governments they serve - that’s the whole point - but despite the “Advisory” title, Commissioners are required to be not just an “advocate” for economic use of customary land - but a “good advocate”. Isn’t this a conflict of interest between government intentions and what an advisory commission would normally be expected to deliver - i.e. offer independent advice?

Aumua:“The CLAC is supposed to provide useful recommendations that would enable our people to make better economic use of our customary land. About 80% of our land is customary land. But it is hard to start a business (e.g. beach fales) if we do not have the necessary capital. Encouraging the economic use of customary land benefits our people. There are several qualities that a person must have before such person can be appointed to be a Commissioner on the CLAC. One such quality is for such a person to be a “good advocate” of the 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. This will defeat the purpose why the CLAC was created. The decision has already been made by Government to promote the economic use of our customary land so our people can benefit – but in a manner where we do not alienate our customary land.

The next step is to see how we can best make use of our customary land for economic purposes. This is where CLAC comes in. CLAC is expected to consult, research and review so they can come up with recommendations to Cabinet as to how to best facilitate and promote the economic use of customary land. I therefore respectfully disagree with the assertion that there is a conflict here.

Q. Does the CLAC legislation adhere to provisions of the Land Titles Registration Act 2008?

“With respect, I do not understand your question.”