A group of matai who lodged a complaint with the Asian Development Bank (A.D.B) in 2014 on the back of fears about the alienation of customary lands are frustrated.

Contacted by the Sunday Samoan for an update of their complaint, the group’s spokesperson, Fiu Mataese Elisara, said the process has “frustrated us immensely” and “taken far too long.”

“The perceived attempt to delay consultation deliberately until after the national elections in March has been most unhelpful,” Fiu said. “It was our desire that the consultation process will have by now completed or progressed substantively given that our complaint was lodged with A.D.B close to two years ago on 29 August 2014. 

“It would have been ideal for people to make informed choices in the national elections after understanding the substantive content and spirit of our full complaint which we had hoped the meaningful consultation process provides an enabling forum for this.”

In their initial complaint, Fiu, Lilomaiava Dr. Ken Lameta, of Vaimoso, Telei’ai Dr. Sapa Saifaleupolu, of Samatau and Leuluaiali’i Tasi Malifa, of Afega expressed deep concerns about the individualization, financialization and alienation of customary land. 

Their concerns arose as a result of A.D.B Technical Assistance (TA) initiative for Samoa to “Promote the Economic Use of Customary Lands.” They argued that the project had been carried without meaningful consultation across Samoa.

“Sadly, witnessing this important time as Samoa heads to its national elections in a few weeks with polling scheduled for 4 March 2016, we notice with grave concern that none of the candidates or political parties are taking this concern seriously as a campaign issue,” Fiu said. 

“For us, all else become meaningless when people of this country find themselves denied their fundamental rights to own, protect, and have free access to their collective tenure and hold on customary lands. We are referring to 80percent of the total land area in this country.”     

As a result of the complaint, A.D.B endorsed a five-person investigating mission through its Independent Office for Special Project Facility (O.S.P.F) to Samoa.

The mission found that contrary to the Samoa government reports that adequate consultations were carried out in relation to the T.A, this was not the case. 

“A major component of our complaint was on there being no meaningful consultation at all with the owners of customary lands, which we see as a necessary pre-requisite for this initiative to even begin,” Fiu said.

“Especially when in our assessment the outcomes of Phases I and II of the TAs have laid out the baseline and building blocks to enable banks accept customary lands being used as securities and collateral to protect the interests of investors.

“Ultimately, it was tantamount to alienation of customary lands contrary to what the government continues to tell the people of Samoa that customary lands was protected under the Constitution.

“A.D.B, and Government had to succumb to our insistence and findings of O.S.P.F. that meaningful consultation was not implemented and must be done. As complainants, we called for all the outcomes and activities of Phases I and II to be stopped until this meaningful consultation process is completed. 

“There continues to be argument on the scope of the consultation and whether or not this will revisit some of the major outcomes of Phases I and II namely, amongst others, the Land Titles Registration Act 2008 (L.T.R.A) and the Customary Land Advisory Committee Act 2013 (C.L.A.C). 

“For us, we continue to hold this retrospective revisit position strong and non-negotiable. For government, they prefer not to go back to Phases I and II but the consultation takes a forward looking approach starting from Phase III.”

According to Fiu, as a result of their complaint, A.D.B accepted to recruit a Consultation Specialist. 

 “However, A.D.B only recruited this person in the latter part of December 2015 and came to Samoa at the end of December 2015 and only able to start work middle of January 2016 on a draft strategy and framework on what meaningful consultation entails,” Fiu said.

“In a meeting with representatives of A.D.B, O.S.P.F, and government, over two weeks ago on 27 January this year, we registered our concern that this process has frustrated us immensely and taken far too long.”

Having said that, Fiu remains hopeful.

“It is expected that ‘meaningful consultation’ will begin in a few months and we sincerely hope that the people of this country will utilize this opportunity to be better informed and allow them make appropriate decisions as owners of customary lands and whether or not they would authorize to use these as collaterals to secure investors interests,” he said.

“The other very important issues that we hope will be clearly explained in the consultations involve clarity on definitions for lease interests that will be subjected to mortgage, indefeasibility of title under the Torrens System of land registration when applied to customary lands, open ended power on the Minister to lease customary lands without obligation to consult owners, clarity on foreclosure procedures and the terms and frequency of review of leases.

“We also want to address the treatment of capital improvements at the end of lease, the implication of the accelerated legislation in the final sitting of Parliament last month January 2016 that now allow lease of public lands to 99 years and implication of this to same application in the future to customary lands, responsibilities of C.L.A.C, the Constitutional protection of Article 102 and how this has been diluted or made void by implications of Article 109 and section 15 of C.L.A.C Act 2013 specifically with reference to mortgage and alienation definitions, implications of registering of the name of Sa’o on the Certificate of Title (C.T) registering customary land leases under LTRA given the indefeasibility power that vest with that and L.T.R.A does not recognize the collective ownership of customary lands held in trust by the Sa’o but treats the Sa’o as the individual owner of land in CT.”