Land Reforms in Samoa
Underpins Sustained Economic Growth
(Investments and Free Trade)
By Fiu Mataese Elisara/Executive Director/OLSSI
Structure:
• Vision and Context
• Sustainable development – insincerity is root cause
• Political Rationale – Why?
•Drivers of Land Reform – Who?
• LTRA 2008 – Impacts on Local Communities?
18 March 2016
Vision:
stewardship of creation!!!
18 March 2016
ABOUT SAMOA
VILLAGES
340
POPULATION
180,000
CUSTOMARY
LAND
82%
COASTAL
SETTLEMENT
DEPENDENCY
ON NATURAL
RESOURCES
DESTRUCTION
FROM
OFA, VAL & HETA, etc
Vulnerable Location
•65% sensitive
•20% medium
•11% Highly Sensitive
•4% Coastline resilient to
Coastal hazards
GDP
Est. >1billion SAT
COASTAL
POPULATION
>74% of all Coastal
Settlement are located
18 March 2016
In low lying areas
NATURAL
DISASTERS
INFRASTRUCTURE
Political Rationale, Drivers, and Why….
18 March 2016
POLITICAL, ECONOMIC, CULTURAL, SOCIAL
CHALLENGE FOR ALL SAMOANS!!!
Customary Lands – http p://www.adb.org the government
has indicated…it will devise a strategy to improve access to
customary land…and use of customary lands as collateral…
The Samoa Strategy and Policy Dialogue “…the strategy
reflected the most common aspirations of vulnerable and
disadvantaged communities based on ADB’s participatory
poverty surveys…also included dialogue on the policy and
legislative environment for business development,
specifically on legal impediments to economic use of
customary lands, improving debt recovery, and facilitating
secured transactions…”
ADB TA No. 3549 – SAM “Review of Economic Use of
Customary Lands”
18 March 2016
http p://www.adb.org Under the heading of Thematic
Priorities of the ADB and Samoan Development Bank –
Insecure Land Tenure, inefficient public enterprises, and
regulation that make it difficult to transact domestic and
international business are important constraints to private
sector development. The Government has indicated that it
will devise a strategy to improve access to customary land and
public land, and use of customary land as collateral. This is a
complex and sensitive issue and it will take time to build
community awareness and acceptance for this concept and its
practical implementation. These issues and constraints are
expected to be addressed during the implementation of the
Small Business Development Projects and associated TA.
18 March 2016
The three-pronged strategy of ADB for Samoa directly support the
Government’s SDS…and is consistent with ADB’s Pacific Strategy for the
New Millennium.
1.
The ADB strategy aims to improve the enabling environment for
accelerated private sector growth and job creation; enhancing the policy
and institutional framework for private sector development; supporting
sound macroeconomic and financial policies and management; freeing
customary land for productive and economic uses; facilitating publicprivate partnerships; and enhancing accountability and performance of
state-owned enterprises.
2.
To enhance access to, and delivery of, basic social services by providing
infrastructure and enhancing management and performance of relevant
public sector institutions
3.
Help improve living standards and reduce income disparity through
improved equity and access to quality education for all Samoans.
18 March 2016
For 2004-2006 three firm loans programmed in
education, renewable energy, sanitation and
drainage at an average of USD$5 million per year.
A standby allocation of USD$3 million has also been
promised for 2006, consistent with the high-case
scenario, to help the Government mobilize and
securitize customary land.
18 March 2016
Australia WHITE PAPER 2006
•
the ‘Pacific Land Mobilization” push in the WP under its
‘Accelerating Economic Growth’ posed a most serious concern for
the PICs - 80% of cultural ownership of resources!
•
All PICs need to reject this outright as this push by AusAID is
meddling with the most important asset we have and any move to
change the land tenure system of customary lands in the Pacific
will result in civil wars and social conflict. This is the most damning
component of the WP in my view.
Australia - PACIFIC 2020:
• “…the challenge for governments in the PIC is to steer changes in
land tenure arrangements in support of economic growth…”
• recording land rights
• register titles and agreements
• dispute settlements
• geodetic definitions and satellite imagery
18 March 2016
• May 2009 – elders, NGOs, women – National Land Meeting in Lamap, Malekula
Vanuatu – launched a process opposing land alienation - Lamap Declaration –
‘land belongs to family, tribe or clan – not individual
• AidWatch and Oxfam Australia (Claire Slatter) – monitor land reforms and
alienation of CL for tourism – case studies
• Joel Simo (expert on Vanuatu land issues) from the Vanuatu Senta went to
Australia March 2010 to talk about these issues
• AusAID with PIFs issued a major report in 2008 called “Making Land Work” –
two volumes (Vol 1 – regional overview on issues; Vol 2 – case studies) look at
ways to mobilize land for “development” (whilst respecting customary
rights???)
• debate in PNG with Bismark Ramu Group in Madang province mobilizing CL
owners from different clans to sort out their land disputes using traditional
reconciliation methods – paper by Stephen Sukhot of PNG involved in this
• work done on women and land tenure with PIFs producing 2008 report with
case studies from Vanuatu, Solomon, Marshall Islands
18 March 2016
PACIFIC PLAN – OBSERVATIONS
• only real concrete proposal in PP are economic integration and trade
liberalization
• no real openness to consider ideas from consultation
• poverty reduction should be the overarching aim, but not based solely on
income as in MDGs
• PICS not to be pressured into inappropriate and damaging agreements for
liberalization of trade
• should identify underlying causes of poverty, un-sustainability, poor
governance, insecurity
• no real commitment to treasure diversity of cultures and traditions –
cultural values, identities, TK, PP do not match success indicators
• PP force globalization on PICs under the guise of good governance and
democracy
• exploitation of IPs – IPRs in medicine and traditional practices, culture,
tradition, language, NR, lands, etc.
18 March 2016
Land Titles Registration Act 2008
Real Concerns!!!
Torrens System of Land Registration
“Indefeasibility of Title” – CL included!!!
Plight of Lands of IPs - Maoris, Aborigines, Hawaii
18 March 2016
World Bank:
Infrastructure Asset Management Project IDA Credit Cr. 348-WSO TOR for
Component 5 : Land Administration & Survey, the government of Samoa in
March 1999 talked about reform of the land system a priority - the Torrens
system and land reforms
Project Appraisal Document - Project Credit in the Amount of US$12.80
million to Samoa in Support of the Second Phase of the Infrastructure Asset
Management Program December 2003 - about the Torrens system arguing the
indefeasibility of title to land once land is registered.
The document explains … the customary lands (CL) system would be
designed to allow the authority (‘pule’) over CL to be recorded and CL would
be gradually brought into the improved mapping system, etc.
this will turn 82% of CL into the Torrens system indefeasibility of title and the
Land Titles Registration Act 2008 (LTR) lays the ground work and legal
framework and foundation to be mapped out, surveyed and recorded for that
inevitable indefeasibility of title scheme.
18 March 2016
Constitution Art. 102
No alienation of customary land – it shall not be lawful or competent for
any person to make any alienation or disposition of CL or of any interest
in CL, 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 authorize:
(a) The granting of lease or license of any CL or of any interest therein;
(b) the taking of any CL or any interest therein for public purposes
18 March 2016
Constitution – Art.109
(1) Any of the provisions of the Constitution may be amended or repealed by
Act and new provisions may be inserted in the Constitution by Act if a bill for
any such purpose is supported at its third reading by the votes of not less than
two-thirds of the total number of Members of Parliament (including vacancies)
and if not fewer than 90 days between the second and third readings of that bill
PROVIDED THAT no bill amending, repealing or adding to the provision of
Article 102 or the provisions of this proviso shall be submitted to the Head of
State for assent until it has been submitted to a poll of the electors on the rolls
for the territorial constituencies established under the provision of Article 44
and unless it has been supported by two-thirds of the valid votes cast in such a
poll
(2) A certificate under the hand of the Speaker that a bill has been passed
under the provision of clause (1) shall be conclusive and shall not be
questioned in any Court
18 March 2016
Observation…
•Foreign system of land registration and ownership shall wreck and destroy
the CL, principles, and ownership concepts we inherited, and with it, the
traditional changing values of our cultural democracy – the indefeasibility of
title – Torrens System of registration
• govt. has borrowed extensively from WB, IMF, ADB, etc. for last 15 to 20
years and for their investments – govt. will do what lenders demand
• CL owners become collateral land owners as WB, ADB, etc. force CL for
securities to repay loans and get more loans - as CL perceived to be
underutilized
• change the land system to allow 82% CL to be used for collateral and
security to borrow on – make all land deals commercial and non-returnable to
CL owners (unless able to re-pay the mortgage) – implies that the CL owners
become collateral and security land owners
• Samoa (LDC, WTO, FTAs, etc.) – land taxes, privatize public goods, etc.
18 March 2016
Land Titles Registration Act 2008…
• requires that all lands – customary, freehold, public and government – to
be registered
• Registrar – Very Powerful - controls registration by way of electronic
system of registration
• Authority of Registrar is wide and extensive conferred overriding power
to deal will all land as he/she sees fit (requirement that ‘all land dealings
with land must be registered by way of instrument of registration)
• This is a catch – By way of that registration, indefeasibility and
insurmountable title passes (Part 7 - Effect of Registration) – prescribes
that “… the registered proprietor…of any estate or interest in land…shall
except in the case of fraud, hold the same, subject to such other estates
and interests…absolutely free from all other estates and interests that are
not so recorded,….” In this way, the “estate of the registered proprietor is
paramount, and cannot be defeated, hence the ‘indefeasibility of title’
18 March 2016
• Upon registration – such land whether freehold, customary or otherwise –
shall become liable as security in a manner and subject to the covenants,
conditions and contingencies set forth and specified in such an instrument for
registration
• In other words – once registered in its own folio under the authority of the
Registrar, that land can become amenable to some commercial use or as
collateral for a loan – even if that land is customary but is registered, that
registration is sufficient to borrow on – The matai in ‘pule’ of the family land
can so use it even if the extended family did not know about that use – the
result is if he cannot repay, the CL is gone and lost forever from the family
• This is the key ‘devil in detail’ – because from such a collateral by a matai
holding unto ‘his individual pule’ and ignoring his ‘trusteeship’ duty to his
extended family, the land shall be lost forever if that matai shall be unable to
repay the loan – why this Act is a ‘killer’ for CLs and for Samoans families
• True nature of CL ownership is never amenable as security for a loan – it can
be used for leases or license, but at least the land remains CL and is within the
pule and general authority of the family as entrenched in Art. 101 (2) of
Constitution
18 March 2016
• true intent of the LTRA - is to take CL, that is perceived by investors and
government as not properly utilized – and in so far as the real owners of
CLs, the extended family and the people to whom the matai was holding
the land in trust thereof, have no recourse as the matai they originally
selected now exercise his ‘pule’ to mortgage the land for whatever
purposes he wants, and that is the end of that.
• Another problem – if matai (or village) was a joint commercial partner
with a foreign investor (eg. Hotel) and his share into the venture is CLs
for security – if venture collapses, the investor can buy out the share and
take CLs - losing this from the matai and family forever – colonization all
over again – is indeed neo-colonization!
18 March 2016
“Stand Up for Samoa…”
• less than 50 years since Independence, HRPP seize control of all Samoa
lands, tax it, extinguish ancestral title (CLs) - LTRA – unfair and unlawful
• Ancestral ownership - lands and traditional resources by Samoans – lost
• International Law – birthright is accepted and respected as a lawful claim by
those occupying the land and have inherited their rights - highest form of
ownership and brings complete authority or sovereignty over lands and
traditional resources because of bloodline
• International Law - ancestral rights of inheritance can only be set aside
deliberately - Samoans never gave up rights of ownership over lands and
resources - never been meetings or consultations with matais or Samoan
people to say that we give up lands or resources given us by our ancestors each family member of aiga has rights to customary land ownership and
resources - cannot be taken away without free prior informed consent (FPIC)
18 March 2016
Stand up for Samoa…
• no government has the right to transfer or extinguish the ancestral rights of
any Aiga member without their FPIC through referendum
• forbidden to give rights to one person and end rights of Aiga members
•any development that does not acknowledge the Matai and Aiga as sovereign,
return the majority of profit to Aiga, preserve resources for future Aiga
members – unacceptable!
• Samoans and resources do not exist to please/profit foreigners
• our duty is to steward our lands/resources for Aiga and preserve all the
resources for future Aiga generations
• any plan to profit others by taking land and resources from the Aiga owners is
nothing more than theft
• LTRA – bundles up rights of individual family members to land - gives them to
a single person (Sa’o) – destroys ownership by family with Matai as guardian
protecting/preserving Aiga rights for current and future members
• Matais do not have authority to permanently take away family rights of their
Aiga to profit themselves as they are only guardians for the entire family
18 March 2016
LTRA ….
• Art 102 of Constitution – forbids alienation of CL
• sec. 9 – directs Registrar after 1 March 2009 to register public lands, freehold,
and CLs leased or licensed or CLs where judgment has been made in the L&T
• sec. 9 (4) – no provision of the LTRA may be construed or applied to permit or
imply the alienation of CL in a way prohibited by Art.102 of Const. or permit or
deem ownership in any CL to vest in a person otherwise than as determined
under any law dealing with the determination of title of CL
• the above points are nonsensical as registration of any CL under the LTRA is
not permitted by the Const. without a referendum because it alienate CL by:
• first - destroying the CL status and creating a lesser estate or right in law
called a ‘freehold title’ with ‘state sovereignty’ which is subject to tax and
seizure by the State
• second – takes away all rights of the Aiga to the registered land by
operation of law which is not permitted by Art. 14 of Const. – a device to
alienate CL rights and registered CLs can be mortgaged and sold if debts
secured against it are not paid.
18 March 2016
LTRA…
• all Aiga with interest in any piece of CL lose out when it is registered under
LTRA – this secretive alienation of CL rights of all Samoans is unlawful
• Samoans overseas sending finance assistance for more than 50 years
(approx. 20% of GDP 2010) lose CL rights
•Yet foreigners can form companies and buy Samoan land with HoS consent.
But overseas Samoans cannot buy Samoan land if their shareholding or
voting power in a company is more than 25%
• sec. 31 of LTRA – permits the land to be used to secure debt – direct
disobedience to Art. 102 of Const.
18 March 2016
Sec 32 LTRA…
• registered owners can deal with land as his/her own – despite superior Aiga
rights to estate and interest in CL
• State may, where land is registered under this Act:
• enter, go across, do things on land for the purposes in the Act
• recover taxes, duties, charges, rates or assessments by proceedings in
respect of land
• expropriate land (take from owner for public use or benefit)
• restrict the use of land
Sec. 44 LTRA…
• registered land may be mortgaged – in spite of the prohibition or mortgages
against CL in Art. 102 of Const.
Sec. 47 LTRA…
• mortgagor of the land to be recorded as the owner of the land
Sec. 59, 60, 70 LTRA…
• enable land under Act to be taken to satisfy debt or transferred upon the
death of the owner – it has no protection status as CL!
18 March 2016
Observations…
• why should foreigners make money from our lands and resources while the
true owners struggle every day to live
• need to protect our Aiga from attack by non family members and ‘thieving’
Aiga members facilitated by the LTRA – divide and rule
• our ancestors intended us to be the masters in our own land – foreigners may
advise but sovereignty is ours! And we must profit above all others!
• CL is tax free! – States have few rights in relation to CL!
• But if CL is registered in LTRA as a lease or license, or register in the name of
Sa’o, then the State can do what is stated in Sec. 32 (do things specified in
Act…; recover taxes…; expropriate land…; restrict land use…)
• Did our ancestors protect and keep our lands so we could slave to pay taxes
to other Samoans and foreigners? - Our sovereignty is guaranteed by our
Constitution - Our CL, resources, and peoples are not for sale! - Our CL and
Samoan indigenous peoples rights are non-negotiable!
18 March 2016
It is bad enough to be colonized by foreigners!
But unforgivable and criminal -To be colonized by our
own people!!!
Thank You
18 March 2016