Re: The Lefaga land decision and what it means
Maua, read and understand the legislation thoroughly then you’ll know there is no distortion of facts about customary lands. I beg you to do your due diligence before adding your two cents.
Since you point out that our customary lands need the ability to be leased for the development of Samoa and to benefit the aiga. Allow me to clarify some details for you.
Firstly our customary lands has always been legally leased under ACLA 1965. An ACT to provide for the leasing and licensing of customary land for certain purposes.
The aiga’s names were recorded and their consent given before any deals was negotiated and registered in a customary land lease. This according to the ADB TA Report prolongs the approval process and discourage long-term land development.
The ADB funded technical assistance (TA) to the HRPP government also made recommendations to legalize the use of customary land leases as collateral for mortgages. The ADB believes this will further enhance the economic use of customary land by allowing investors to mortgage leases.
The main issue now since the repeals and amendments is our customary land leases can be mortgaged and also registered as public land (government land) in the name of the MNRE minister. Also for these mortgages to be economically viable the financial institutions need leases to be long term like 75 to 99 years.
Another issue many people disagree with is why only one name on the application form to lease a family’s customary land. Which under the LTRA Torrens title registration system gives that person and probably their descendants indefeasible right and ownership to the aiga’s land.
And look at the outcome of this illegal LTRA legislation and what is happening to our customary lands. The Lefaga case highlights the fact that LTC and LTCA have no jurisdiction over the customary land because it is public land.
Therefore the customary landowners have no right and alienated from their land. Now tell me what do you think has happened to all customary land leases in Samoa to date? Yes this case has been a revelation and it would suggest all customary land leases is registered as public land (government land).
If you had followed the case from the beginning then you’d understand the reason why the customary landowners took the resort to LTC. It was due to a dispute over lease payments they claimed were not being paid.
The resort lease was revoked and cancelled. The resort countered with an appeal but the decision was upheld by LTCA in favor of the customary landowners. However since customary land is registered as public land when leased it is placed into the Supreme Court jurisdiction.
Can you tell me what would happen if lessee/licensee defaults on mortgage?
The banks will sell the lease to recoup the money lent out because it is not a charity organization.
What if the banks cannot find a new lessee/licensee for the duration of lease? What will happen by the time lease has lapsed? Do you think the banks are simply going to hand the lease back to the customary landowners?
I doubt it.
And who is to say the HRPP government that has decimated our Constitution will not make further repeals or amendments to allow banks to sell lease of customary land like freehold land.
“Believe what you like, but don’t believe everything you read or hear without questioning it.”