The Acting Prime Minister, Fiame Naomi Mata’afa, has issued a very brief response to concerns expressed by the former Head of State, His Highness Tui Atua, about customary lands and Samoa’s land laws.
“He signed the law,” Fiame said.
“I don’t know what more to say other than I have no comment.”
She did not elaborate.
In a public address last week, His Highness Tui Atua warned that the wording of Article 102 of the Constitution is ambiguous. He fears that this could be negatively exploited and could lead to the alienation of customary lands.
The law Fiame is referring to is the Land Titles Registration Act 2008, which was signed into law by Tui Atua when he was the Head of State.
Last week, His Highness Tui Atua said he was assured by the Office of the Attorney General that the Land Titles Registration Bill (L.T.R.) 2008 would not alienate customary lands.
His Highness Tui Atua said he had asked for clarity on the matter when he was given the L.T.R. Bill 2008 to sign. The advice was given in a letter from former Attorney General, Aumua Ming Leung Wai.
“In 2008 as Head of State, I was assured by the Attorney General that the provisions of the L.T.R. Bill would not impact in any way on the customary land rights of suli,” Tui Atua said.
“The Attorney General and his or her office is tasked with a sacred duty to provide the Head of State with the best legal advice possible.”
It was with this assurance that Tui Atua signed the bill. Asked for a copy of the letter from the former A.G., Tui Atua said he could not find it.
Aumua has reportedly told the media that the advice he issued at the time is confidential and could not be released.
During a media event at Tuaefu, Tui Atua said there is “ambiguity” in Article 102 of the Constitution that needs to be dealt with.
“Today we have the responsibility of admitting that there is a problem with Article 102; that the ambiguity within is serious enough to warrant the attention of our best minds in order to make Article 102 unambiguous,” he said.
“These minds, however, must be able to locate the principle of alofa in their custom law and statutory law assessments and have it sing in harmony alongside their assessments of pule, and of legal certainty and transparency.”
The Article 102 in question reads:
No alienation of customary land – It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:
Provided that an Act of Parliament may authorise –
(a) The granting of a lease or licence of any customary land or of any interest therein;
(b) The taking of any customary land or any interest therein for public purposes”.
Said Tui Atua: “In layman’s terms the Article says that it is illegal to alienate customary lands unless an Act of Parliament allows for 1. a lease or licence to be granted over customary land, or 2. customary land is to be taken for public purposes.
“I do not have any problems with the taking of customary land for public purposes, assuming of course that such public purposes are indeed valid public purposes.
“What I have a problem with is the ambiguity that arises as a result of reading the sub-clause that states that an Act of Parliament may authorise “the granting of a lease or licence of any customary land or of any interest therein” alongside the wording of the main text of the Article which says no alienation of customary land “…whether by way of sale, mortgage or otherwise howsoever.”
He added that the debate about Samoan customary land and land laws “is the most dangerous issue facing us since our fight for the return of our Independence".
“The land law issue we are embroiled in now has the potential to strip us of our soul. There is a divisiveness here that we must avoid at all costs,” he said.
“But to avoid this we must re-locate, re-inscribe and re-inspirit in the heart and mind of our laws the wisdom of our tu ma aganuu Samoa and our tofi pa’ia tuufaasolo. This we cannot do without finding and reviving the principle of alofa in law.
“We have faced many challenges as a nation since regaining Independence but this is the most serious. To overcome this challenge, we must first recognise that the challenge now comes not from outside but from within.
“We must recognise that, like Joshua and the Israelites, the only way to cross the river as a nation with our souls intact is to find understanding in the wisdom of our forebears and their trust in God.”