Bank tells matai to speak to govt.

The Asian Development Bank (A.D.B.) is claiming no responsibility for the customary land debacle that erupted in Samoa last December.

In a letter dated 21 February 2014, obtained by the Samoa Observer, the Officer-in-Charge of the Bank’s Pacific Subregional Office, Caroline Currie, told the group to take their issues surround up with the newly established local Customary Land Advisory Committee (C.L.A.C.).

Her response is to a letter that a group of matai wrote to the Bank last December, calling for the A.D.B to halt the customary land project.

“In 2013 the government established a Customary Land Advisory Commission (CLAC) – an independent body to address customary land matters,” Ms. Currie writes.

“C.L.A.C has a finite period of seven years to develop the leasing framework that will promote the use of customary land.

“It is doing this through extensive and wide ranging stakeholder consultation and community advocacy, including a customary land forum and various expert working groups.

“The C.L.A.C is the appropriate body to address the very specific issues you raised in your letter and I would encourage you to speak with the CLAC.”

Ms. Currie writes that her Bank’s Technical Assistance (T.A.) of the project supports a Samoa government initiative that dates back to the early 2000s when government sought to explore ways to improve access to credit for micro and small enterprises.

“Following the extensive nationwide consultations, the government requested technical assistance from A.D.B. As this is a priority for government, reflected in the Strategy or the Development of Samoa, A.D.B. has been pleased to provide financial and technical support over the years,” she says.

“The centrality of land in Samoa culture and its protection under the Samoan Constitution and the law has guided the government and A.D.B. in agreeing on the most appropriate implementation arrangements for the T.A.

“A task force comprising prominent members of the community and key government officials, has led T.A. implementation.

“The task force has been supported by a team of predominantly Samoa consultants (including the team leader) and a small number of international consultants to fulfil the terms of reference provided by the government.

“Key government ministries, the Attorney General’s Office, and other stakeholders including N.G.O.s, have provided extensive input – through the consultation process led by the task force. “We assure that A.D.B. diligently applied our strict, social and environmental safeguards throughout.”

The group of matai, spearheaded by Lilomaiava Ken Lameta, of Vaimoso and Safotu, raised concerns over a project they say “could alienate 80 per cent of all land in Samoa.”

Other group members include Teleiai Dr. Sapa Saifaleupolu, of Samatau, Fiu Mataese Elisara, of Sili Savai’i and Leulua’iali’i Tasi Malifa, of Afega. In a letter to ADB dated 19 December 2013, the four men filed a complaint under policies that are supposed to protect “indigenous” people affected by bank projects.

In its letter of complaint, the group of matai states that their research shows A.D.B. and the government of Samoa began their customary land project some 15 years ago, ending in a number of laws, including the Land Titles Registration Act 2008, and the Customary Land Advisory Commission Act 2013.

“We are concerned that the ongoing funding by A.D.B. to help our government implement its intention to allow use of our customary lands as collateral for economic development is tantamount to ultimately alienation of our customary lands, and thereby lead to violation of the rights of our Samoan people here and overseas,” the matai letter reads,

Under the complaint, the writers called on the A.D.B. to halt its project. Independent State of Samoa: Promoting Economic Use of Customary Land, Phase III.

Both letters read in full below:

The letter from the Matai:
19 December 2013
Malie Lotolelei Pacific Subregional Office (SPSO) 5th Floor Ra Marama Building 91 Gordon Street, Suva, Fiji mlototele@adb.org

Lodging a complaint on ongoing ADB efforts to allow mortgages on security of customary lands in Samoa

This Firm, together with the gentlemen whose names and signatures appear below, wish to submit this letter by way of our complaint of the Asian Development Bank’s (ADB) work with the Government of Samoa, in alienating Samoan customary lands to be readily available as collateral security for loan mortgage transactions.

Research we have undertaken shows ADB and the Government of Samoa began this process some 15 years ago, culminating in the passage into law of a number of statutes specifically for that purpose, including the Land Titles Registration Act 2008, and the Customary Land Advisory Commission Act 2013.

Of course, not only were these statutes written by ADB consultants — which obviously meant the laws were not as the people want and need, but as ADB demands — but also that the consultants themselves were paid for with ADB grant money.

Underlying this project and what these laws permit, is the creation of a land titles registry, by way of “legislative amendments as necessary" to “free up customary land for commercial activities in a designated area or areas.... and to undertake a comprehensive review of the law pertaining to land, including but not necessarily limited to the various legal impediments preventing the movement of land, particularly customary land, to higher economic uses.”

In other words, these laws are to provide for economic use of customary lands. Immediately, this simple question comes to mind: is it critically necessary to change Samoan cultural ownership of land, simply to make money, or, as in the words above, to achieve “higher economic uses”, whatever that is?

Samoans are an indigenous original people in our own right; and as Samoa is a signatory to both the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ILO 169, and other International Human Rights Instruments, we are concerned that the ongoing funding by ADB to help our government implement its intention to allow use of our customary lands as collateral for economic development is tantamount to ultimately alienation of our customary lands, and thereby lead to violation of the rights of our Samoan people here and overseas.

Customary land is not merely untapped collateral. Rather, it sits at the heart of the fa’aSamoa — of the Samoan political and electoral mainstream, as well as its cultural core and family life. Accordingly, customary land rights are entrenched and securely enshrined in the Constitution.

We request therefore that Projects 41173- 012: Promoting Economic Use of Customary Land, Phase II, and 46512-001: Promoting Economic Use of Customary Land, Phase III, take into consideration that Samoans are an Indigenous People and that this project has a Category A impact.

These land tenure reforms are incompatible with the indigenous culture and political institutions of Samoa, and they are inconsistent with the needs and aspirations of the Samoan people. This is reflected in polls which have been conducted by New Zealand based political scientists and the local newspaper.

In our view, the outcomes of this ADB partnership with our government, with Phase II completed and going into Phase III, shall ultimately result in the resettlement of our people, who, of course, own about 80% of all land.

And these being cultural and customary lands, which under these new laws shall be readily available as loan security, these lands shall immediately become ‘indebted’ to investor interests both foreign and national, and thus, be taken over by commercial banks when default happens.

Ultimately, the interest in the lands are alienated and taken away from the people, contrary to and much against the spirit and intent by which our forefathers as Framers of our Constitution ordained and desired those be.

We ask that ADB refrain from continuing with this project. We believe ADB is not complying with its own policies in respect thereof; it is not abiding with its own compliance mechanisms and or its engagement requirements, and it is not even following its own operational regulations.

We know that the ADB is required to pay special attention to projects which are expected to displace ‘indigenous peoples’, and we can be certain that in the pivotal issue of mortgages by way of this new security of customary lands for ‘higher economic use’ as ADB is promoting in this Samoan project, it has not done that. It has not paid ‘special attention’ to the dire needs of the Samoan people as shall be affected — in fact displaced — by this project. Instead, it has merely provided all aid and monies as the Samoan Government requests and requested, and in the process requires the Samoan Government to do as it wants.

The threshold for triggering the ADB’s Involuntary Resettlement safeguards is that 200 people will be displaced or stand to lose 10% of their productive or income generating assets. The ADB’s land tenure reform projects cross this threshold.

The ADB is aiming to increase borrowing to 50% of GDP by promoting collateral based lending and reducing the risk of foreign investors.

But the projects do nothing to lower the default rate of indigenous borrowers whose land is at stake, and who have historically had extremely high default rates. For example, a recent ADB microloan project had a 30% severe delinquency rate.

So, the ADB knows and has projected a high default rate by Samoan customary land borrowers. The ADB has attempted to estimate a very high percentage of Samoans — noting of course that customary lands is about 80% of all lands - who will take this ‘higher use’ of customary land to borrow on, and of course, fail to pay back the Banks and the loan institutions. It follows that by these new laws, the lands — customary lands — shall be alienated/taken by the Banks, and the people become displaced and dispossessed thereof.

Is this ADB’s special attention to indigenous Samoans — displacement?

We also know that ADB is obliged by its own procedures to evaluate this risk more closely, particularly in a country without strong borrower education programs or predatory lending laws. One step in Project 46512-001 is to create a system whereby leases against customary land may be registered in the Torrens Land Title Registry. The registry of any interest in customary lands under any individual’s name in the Torrens Land Title Registry directly threatens our interests as stewards of customary land.

We request that the ADB refrain from drafting further laws or creating institutions in support of this action, and from any test cases of this action.

At this juncture of the ADB and Samoan Government Phase III Project, we wish to give notice that we will galvanize all support to take this matter through all avenues available, including of course, those of litigation in the Courts of law.

Meanwhile, we ask that ADB through you as its representatives with responsibilities in Samoa and the Pacific, to ensure that ADB is complying with its own policies in this important matter.

Needless to say, sustainable development demands equal and balanced treatment of all in its four pillars of economic growth, social equity, cultural integrity, and cultural protection and enhanced diversity.

Further, we ask ADB to engage in evaluating the real risks of foreclosures that will be inevitable as an outcome of its project if it proceeds, to ensure compliance with its policy of genuine public engagement, consultation and discussion. In this way, Civil Society Organisations (CSO) shall be ensured of adequate funding support in transparency, and thereby assist us all in our role and responsibility to advocate our concerns about this ADB/Samoa government partnership.

Sincerely,

Lilomaiva Ken Lameta — matai of the villages of Vaimoso, Upolu and Safotu, Savaii/Veterinary Doctor/Chairman of the Board of Directors for Ole Siosiomaga Society Incorporated

Dr. Telaiai Sapa Saifaleupolu — matai of the village of Samatau, Upolu/consultant

Fiu Mata’ese Elisara — matai of the village of Sili, Savaii/Executive Director of Ole Siosiomaga Society

Leuluaiali’i Tasi Malifa — matai of the village of Afega/lawyer/Libra Law

cc: Adrien Ruthenberg — Regional Director aruthenberg@adb.org

Xianbin Yao — Pacific Regional Director/ADB. xyao@adb.org

Stephen Groff - Vice President of ADB/Pacific Area sgroff@adb.org

And the response from the ADB:

21 February

Mr. Leuluaialii Tasi Malifa
Libra Law
Vaitele
Apia
Samoa

Dear Mr Malifa:

Thank you for you letter of 19 December 2013 where you raised concerns regarding the Asian Development Bank’s (A.D.B.) technical assistance (T.A.) to government for promoting the economic use of customary land in Samoa.

The T.A. supports a Samoa government initiative that dates back to the early 2000s when government sought to explore ways to improve access to credit for micro and small enterprises. Following the extensive nationwide consultations, the government requested technical assistance from A.D.B. As this is a priority for government, reflected in the Strategy or the Development of Samoa, A.D.B. has been pleased to provide financial and technical support over the years.

The centrality of land in Samoa culture and its protection under the Samoan Constitution and the law has guided the government and A.D.B. in agreeing on the most appropriate implementation arrangements for the T.A. A task force comprising prominent members of the community and key government officials, has led T.A. implementation. The task force has been supported by a team of predominantly Samoa consultants (including the team leader) and a small number of international consultants to fulfil the terms of reference provided by the government. Key government ministries, the Attorney General’s Office, and other stakeholders including NGOs, have provided extensive input – through the consultation process led by the task force. We assure that ADV diligently applied our strict, social and environmental safeguards throughout.

In 2013 the government established a Customary Land Advisory Commission (CLAC) – an independent body to address customary land matters. CLAC has a finite period of seven years to develop the leasing framework that will promote the use of customary land. It is doing this through extensive and wide ranging stakeholder consultation and community advocacy, including a customary land forum and various expert working groups.

The CLAC is the appropriate body to address the very specific issues you raised in your letter and I would encourage you to speak with the CLAC.

Yours sincerely,

Caroline Currie
Officer-in-Charge