Customary land Advocate, Fiu Mataese Elisara, has commended the Government for the changes proposed in the Alienation of Customary Land Amendment Bill 2017, which has been tabled in Parliament.
“Personally, I see it positive that at least Government has now, through this draft Bill, responded to its promise to A.D.B. (Asian Development Bank) in respect of A.D.B. Board’s decision of 10 August 2016 to give it an opportunity to review and amend legislations to address the harms in respect of our customary lands complaint of 29 August 2014,” Fiu told the Samoa Observer.
The amendments proposed by the Government to the Alienation of Customary Land Amendment Bill 2017 were tabled by the Deputy Prime and Minister of Natural Resources and Environment, Fiame Naomi Mata’afa. She assured that the amendments were designed to strengthen the provisions relating to leasing and licensing of customary land.
According to the Bill’s Explanatory Memorandum, the key amendments deal with leases and licensing of customary land to protect the interests of landowners. They also exist to provide them with “certain rights” that are often enjoyed by commercial lessors, under a Lease or License Agreement.
“The key amendments in relation to mortgages of leases over customary land are to facilitate the mortgaging process and put in place a number of legal prohibitions and requirements that will protect the ownership rights of the beneficial land owners whilst also providing for the interests of mortgagors and mortgagees.”
Fiu, in response, pointed out this issue has galvanized a lot of support not only in Samoa, but abroad as well.
“And it has taken a life of its own evident in the recent protest marches and ongoing sharing of comments on this with specific concerns on the detrimental impacts of the Torrens Titles Registration being applied to customary lands under the Lands Titles Registration Act 2008 (L.T.R.A. 2008).”
He said from the limited comments in the paper, it appeared the Government had taken positive steps through amending the Alienation of Customary Lands Act 1965, about 52 years later.
“Especially in relation to an attempt to protect the rights of customary land owners that are in our considered view detrimentally affected by the unconstitutional provisions of the Torrens System (perfect for administration of freehold land and fee simple 'indefeasible' rights of registered proprietors but not for 'collective' family ownership of customary lands) enshrined in L.T.R.A. 2008.
“It is obvious the previous attempts of Government to amend the Land Titles Registration Act in 2015, seven years after L.T.R.A. 2008, specifically addressing the issues of 'recording versus registration' of customary lands under L.T.R.A. 2008, were inadequate to address the dangers posed by the continuing registration of customary land leases and licenses under L.T.R.A.2008, as well as how related mortgages of customary land leases and licenses are treated currently under L.T.R.A.2008.”
According to Fiu, this is with specific integration of the spirit of the Property Law Act 1952 in the L.T.R.A. 2008 with regards to definition of mortgages being an actual “transfer of property rights” contrary to the spirit of the Constitution.
“It is clear to me that in alignment and together with the related harms in our complaint, government has necessitated this draft Bill now tabled in Parliament which is positive as I have stated above.
“However I still find it difficult to understand that despite the clear prohibition by the Constitution of customary lands being 'alienated', that this was not picked up in 1965 when this Act was entitled Alienation of Customary Lands Act 1965.
“Yet again under the draft Bill now tabled in Parliament, it is again titled "Alienation" of Customary Lands Amendment Bill 2017. Am I missing something? asked Fiu.
“And until they have the opportunity to review the draft Bill, which Customary Land Advisory Commission (C.L.A.C.) failed as promised over the last few years,” claims Fiu.
“We still have a lot of concerns in respect of L.T.R.A. 2008, Property Law Act 1952, Unit Titles Act 2009, CLAC Act 2013, Lands and Titles Act 1981, Alienation of Customary Lands Amendment Bill 2017, etc. and how all these are aligned to ensuring the Constitutional protection of customary lands and ownership of same are secured as government continue to tell our peoples. Some of these concerns are shared in our email below,” he said.
Fiu has been invited by the Auckland University Faculty of Law to participate and give a keynote address on the topic of Law, Customs, Constitutionalism: Customary Land Tenure in Samoa in their conference next week 12-14 February and it is unfortunate that having not been accorded or given an opportunity to review the draft Bill,” he said.
“Whilst uncomfortable as an ordinary indigenous Samoan without any legal background to be invited by the Auckland University Law Faculty to give this address, I have nevertheless find solace in the fact it was their invite.
“It is therefore a real pity that the C.L.A.C.’s failure to share as promised the draft Bill and deliberate ignoring many of our important communications as in the email below, the presentation I intend to give will only allow me to focus on current legislations.”