Govt. accused in customary land fight

By Staff Writer ,

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Fiu Mataese Elisara and Prime Minister Tuila'epa Sa’ilele Malielegaoi.

Fiu Mataese Elisara and Prime Minister Tuila'epa Sa’ilele Malielegaoi. (Photo: File)

Prime Minister Tuila'epa Sa’ilele Malielegaoi’s government has been accused of stalling the progress of an investigation into a complaint by a group of matai fighting to stop government-initiated projects they claim will “alienate customary lands.”

The group’s spokesperson, Fiu Mataese Elisara, of Sili, told the Samoa Observer that the government has taken almost a year to comply with the decision of the Asian Development Bank (A.D.B) Compliance Review Panel (C.R.P) that the complaint is valid and should be investigated.

This has left the group extremely disappointed. Fiu is joined by Lilomaiava Dr. Ken Lameta, of Vaimoso, Telei’ai Dr. Sapa Saifaleupolu, of Samatau, and Leuluaiali’i Tasi Malifa

In their initial complaint, the group raised alarm about the “individualization, financialisation and alienation of customary land.” 

Their concerns arose as a result of an A.D.B Technical Assistance (T.A) initiative for Samoa to “Promote the Economic Use of Customary Lands”. 

They argued that the project had been carried without meaningful consultation across Samoa. According to the group, under a series of projects called Promoting Economic Use of Customary Land, the A.D.B has driven land and financial sector reforms in Samoa to make it easier to lease customary land and to use those leases as collateral for loans. 

“The A.D.B wants to create a system through which a single authority figure can unilaterally lease out customary land, without consulting other members of the aiga.

“Under the reforms, the lease agreement could then be used by the leaseholder to access credit from a bank. 

 

But if the leaseholder is unable to repay the loan, the bank can take control of the lease, which could cover large tracts of customary land for decades.”

It was not possible to obtain a comment from the government yesterday. 

Prime Minister Tuilaepa Sailele Malielegaoi is on a book tour in New Zealand.

But years after the complaint was lodged through A.D.B, Fiu said they are sad about the government’s stalling tactics.

“Our efforts in soldiering on is our strong belief that the time has passed for any further rhetoric. Time for action is ‘Now’!” he said. 

“It is pitiful when we see that in this pivotal cause, fighting for our customary lands, the ‘Now’ seems to take on a different meaning for most, when it is clothed in garments of fear, of conflicting agendas, of procrastination, and diplomatic euphemism. 

“Sadly for us, it is not a zero sum game! It is a winner takes all scenario! 

“Samoa can best be reminded that History has been a cemetery for oppressed people who have been persecuted until they vanish into historical oblivion! The question is, can we afford to expose our children to such a future? Will your conscience allow it? We cannot!”

For context, the following is an update from the group for our readers:

 

“On 30 August 2014 a group of four village chiefs filed an official complaint to ADB objecting to a series of ADB-backed reforms that will lead to the alienation of customary land. The chiefs are gravely concerned that the reforms, which have been carried out without meaningful consultation of Samoan people, could have the effect of individualizing control over land throughout the country, and ultimately placing large tracts of land in the hands of banks, foreign and national investors. Approximately 80 percent of land in Samoa is governed and owned under customary land tenure systems, which entail collective ownership by entire kinship groups, the Aiga.   

According to the complainants “We object to the ADB’s determination to dispense with our customary laws and systems, which have successfully safeguarded the interests of the Aiga and village communities for millennia… The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites… Meanwhile, members of our Aiga will face dispossession from potentially large-tracts of land, resulting in loss of income, threats to food security and impoverishment.” 

Leuluaialii Tasi Malifa, lawyer and Matai of Afega village explained: “While the Constitution allows customary land to be leased, Article 102 prohibits the alienation of customary land from its rightful owners – the entire Aiga, including through a mortgage. The ADB-backed reforms violate the spirit and the letter of this fundamental Constitutional protection.”

Telei’ai Dr Sapa Saifaleupolu, a Matai of Samatau village said: “Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century.”

Dr. Lilomaiava Lavea Ken Lameta, a Matai of Vaimoso and Safotu said: “Meaningful Consultations if taken seriously in the last 14 years since 2003 as required under Article 109 of the Constitution should have ensured people across the country are aware of the reforms and actions and how they may be affected and allow them an opportunity to provide their genuine opinions that should have been taken into account in the government decisions on this and Government would have heard plenty of good ideas to enhance customary land productivity in a way that truly benefits local communities.”

Fiu Mata’ese Elisara, a Matai of Sili Savaii said: “These reforms are incompatible with the indigenous culture and political institutions of Samoa, and inconsistent with the needs and aspirations of the Samoan people. The failure of the ADB to comprehend this has sadly meant a missed opportunity to achieve the laudable goal of promoting economic use of customary land in a culturally, socially and politically appropriate manner, and without meddling with our customary land tenure system.”

Dr. Natalie Bugalski, Legal Director at Inclusive Development International, who has offered voluntary advice to the Matais on the complaint, said: “The reforms in Samoa are typical of the ADB’s approach. ADB has a habit of viewing land solely as a commodity to be integrated into financial markets. ADB needs to respect the fact that some societies have a different relationship with their land and value its enduring social function above its financial value. By failing to hold meaningful consultations and properly assess the social implications of the reforms, ADB has violated its own safeguard policies,” 

Some two years of investigation by the independent grievance mechanisms of ADB, first by the Office of Special Project Facility (OSPF), and later when the complainants elevated their complaint to CRP as the highest grievance mechanism of ADB, resulted in CRP recommending that an investigation of the complaint was merited based on their findings. 

The following relevant paragraphs from the Chair’s Summary of the ADB Board Compliance Review Committee at its meeting of 14 July 2016, on the complaint resulting in the ADB Board decision of 19 August 2016 helps on context:

2. On the eligibility of the complaint, the Committee concluded as follows:

i) The Committee agreed with the CRP that there is evidence that ADB was not in compliance with its Public Communications Policy, notably OM Section L3. Specifically, ADB did not ensure all affected sections of the community were fully consulted

3. In these circumstances, the Committee agreed that in view of the current indicators, confirmed by CRP (paragraphs 42 of the CRP report on eligibility), that the Government of Samoa will propose legislative changes that would substantially remove material harm to the complainants, it should recommend to the Board that such a review should not proceed at this time

4. However, if, as the legislative process progresses, it becomes clear that a risk of material harm directly attributable to ADB’s noncompliance with its Public Communications Policy remains, the Committee agreed that it may reconsider this recommendation.

Interesting enough, the Matais claim they know from reliable sources that the USA representative to the ADB Board did not approve the Board decision for a stay of execution in respect of the CRP recommended investigation. Instead the ADB Board decided to not proceed with the investigation but allow the Government of Samoa time to fulfill its undertaking to propose legislative changes that would substantially remove material harm to the complainants.

Subsequent to this decision of 19 August 2016, the four Matais’ rightly consider themselves an integral component of the process the Government was to undertake to deliver its legislative review in paragraph 3 and justifiably assumed that it was their right as complainants to be involved and updated on the proposed legislative changes. They naturally expected to be part of the ‘meaningful consultations’ that CRP recommended Government implement with all stakeholders. CRP investigation findings revealed that contrary to compliance assurance by Government, less than 10% of those interviewed knew there was any such project activities existing in Samoa even after more than 10 years of project implementation.   

Now after almost a year of the ADB Board decision, the Matais have patiently allowed Government freedom to proceed with its commitment to ADB Board on legislation reviews as well as engaging stakeholders in meaningful consultations, amongst other documented expectations of CRP and ADB Board that collectively will ultimately remove harms in the complaint. 

However, the Matais’ frustrations on Government failure, through its Customary Lands Advisory Committee (CLAC), to engage them as an integral part of the process is reflected in the following series of their latest correspondence to Government, to current Chair of CRP, and to ADB. Arguably, there is strong manifestation that all have acted in a manner that the Matais see in their assessment to impartially lean towards support of Government and fail the requirement for independence, transparency, and ensuring that the Complainants as a major party were fully engaged.   

Email of 12 July 2017: This is a follow up please on a CLAC response to our email below of 28 June 2017 which we have not been given the courtesy of a response. CLAC secretary kindly acknowledged our email of 28 June on same date and whilst our email was copied members of CLAC, the secretary also promised to share it with members of the CLAC. 

CRP chair replied to our same email of 28 June two days later on 30 June to which we also replied same date and awaiting a further response from Mr Dingding TANG on that.

Email of 28 Jun 2017: Talofa CRP/CLAC/all - We wish to follow up please on specifically the CRP letter of 29 March 2017 in respect of its Management Update dated 22 March 2017 as well as CLAC response to us on 10 March 2017. 

1. CRP reports that as of 22 March 2017, 12 community consultation meetings were held covering over 230 villages including about 2000 people (1%) of total population and a further two planned community consultations were expected in April. It added that all consultations were fully documented. As complainants, we again stress that the 1% of total population 'consulted' in the CRP report fails miserably the test for 'meaningful consultation' which is a major component of our complaint. We request that the records of the 'fully documented' consultations be shared with us for our information as we expected and further in respect of the CLAC assurance in its letter to us of 10 March 2017 stating that '...a summary of response to key issues will be publicly released and I would be happy to send you a copy...' To date, we have not seen any public release of the said summary of response let alone share copies with ourselves as promised.

2. We request also that CLAC and CRP share with us any drafts of documents that we expected as complainants that point to CRP stating that '...the reforms are designed to strengthen legislative protections preventing the alienation of customary owned land....and reforms aim only to allow leases of customary lands (allowed since Alienation of Customary Lands Act 1965) to be used as collateral, not the underlying ownership interest...' . As you know, this is the major component of our complaint as despite the so-called assurance, we continue to have doubt in the sincerity of the actions taken this far to address the harm detailed in our complaint and as confirmed in specific CRP decision 3 of 14 July 2016 "...the Committee agreed that in view of the current indicators, confirmed by CRP (paragraphs 42 of the CRP report on eligibility), that the Government of Samoa will propose legislative changes that would substantially remove material harm to the complainants....". CRP decisions of 19 August 2016 and related cover note DOC R60-16 also refer to this. As you will appreciate, it is impossible for us to follow the work by the Government of Samoa this far without these documents shared with us as complainants and integral party to the CRP decisions. Interesting in this case, CRP states ''...reforms aim only to allow leases of customary lands ...to be used as collateral..." when all along, ADB, CLAC, and Government of Samoa assured our peoples that it is only the "interests in customary land leases and licenses" that will be used for collaterals and mortgaged. Not leases of customary lands! 

3. On CRP point about mortgaged leases of customary lands under Property Law Act 1952, and government push to have CLAC regulate mortgages of leases of customary lands under LTRA 2008 'to remove any possible uncertainty', therein lies the fundamental basis of our concerns. For us, the leases of customary lands allowed under and in the spirit of Article 102 of the Constitution through ACLA1965 (where the Deeds System of land registration at the time allowed recourse for true owners of lands to be protected even in the case of fraud) are fundamentally different from the leases of customary lands now pushed by the government under LTRA2008 where the act of registration of customary land leases and licenses in the Register secures protection for the investors (not customary land owners) under the Torrens Land Titles registration system through the 'indefeasibility' principle with related accrued protection by law and government giving it 'fee simple' and 'freehold' dna and legal status as specifically enforced under LTRA2008 Sections 32 and 33. Also we are concerned with what interpretations is CLAC and Government given to the legal doctrines of 'privity of contract' and 'privity of estate' in respect of Pt VII of the Property Law Act 1952 that is related to Section 48 of LTRA2008 in regards the 'registration of a mortgage is indeed registration of a conveyance' violating the spirit of Article 102 of the Constitution?     

4. It is impossible for us to check on CRP point about rights of customary land owners being recognized and enforced by the reforms not having the chance given us as complainants and major party to the work now undertaken by CLAC for Government if the documents and reports are not shared with us as we understood and expected.

5. On CRP references to the 3 relevant current laws (the Property Law Act 1952, ACLA1965, LTRA2008) requiring amendments, we argue that these are the same three legislations identified by the Government from the beginning of the ADB TAs and thus not genuine in its Government commitment to "… propose legislative changes that would substantially remove material harm to the complainants...". We suggest that in addition to the three identified, Government need to also review amongst all related legislations the Unit Titles Act 2009, Land and Titles Court Act 1981, etc.

6. CRP states in its 22 March 2017 management update that "...Government is currently planning to introduce legislative changes in the June Parliamentary Session". This June Parliamentary session is currently ongoing and whilst we have been trying to follow any progress in the process since August of 2016, you will appreciate that as a major party to the work Government is undertaking as a result of our complaint, it is impossible to comply with CRP suggestion in its letter to us dated 9 March 2017 - "We strongly encourage you to continue your efforts at resolving the issues with your government and the concerned operations department in ADB"

7. Finally, we would like to say that we as complainants have on goodwill and spirit of cooperation allowed the process of 'consultation' and 'legislative review' continue since CRP report of 20 July 2016 and ADB Board decision of 19 August 2016. Despite a number of our genuine requests for inclusion in the process as a specific party to this work, we have been substantively ignored.

To date, and with the limited information shared with us, we can only conclude that the so-called 'consultation' process has failed miserably the test for it being 'meaningful'! The legislative reviews as well point to the insincerity of government to be genuine in its commitment to ADB Board that "...Government of Samoa will propose legislative changes that would substantially remove material harm to the complainants..."   

We have taken this opportunity in June 2017 to follow up with you on this work and look forward to your CRP and CLAC response to the points above and indeed to share with us all the related documents and drafts of legislative reviews generated as part of this process.

It is our intention to proceed with our advocacy work, the sharing of our concerns with our peoples, and would help us immensely if all the requested information were shared with us to enable a better alignment to any progress made thus far since 19 August 2016.

This letter also serves to again remind CRP of our predicament as complainants and an equal party to its decision of 19 August 2016. If we may, we note the unfortunate departure of Lalanath as one who best championed our cause in CRP and pray that the future of this complaint continues to secure that security and integrity.

 

Leulua’iali’i Tasi Malifa

Dr Lilomaiava Lavea Kenneth Lameta

Telei’ai Dr Sapa Saifaleupolu

Fiu Mataese Elisara 

 

The Complainants take this opportunity in the foregoing to update the people of Samoa on the status of their complaint as there has been and ongoing immense interest from our Samoan people in Samoa and outside of Samoa supporting this cause and initiative. Assurance from them point to extensive involvement of Samoans around the world, over the internet, social media, etc. and wish to thank those who have actively engaged in this struggle. We also wish to thank those who have given us assurance of their ‘latent’ and ‘spiritual’ support but for fear of reprisal and being targeted by Government, cannot do this openly. 

© Samoa Observer 2016

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