Questions about the idea of leasing out of Customary land

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Dear Editor,

I refer to an article of Samoa Observer of 09/12/2017 (A.G rejects land threat) regarding the Attorney General’s rejection of land threat. 

There is something important that was overlooked by the Attorney General in the Article 102 of the Constitution in relation to the idea of “leasing”. 

If the Attorney General was quoting directly from the Act or from the book of laws then the H.R.P.P’s idea of ‘leasing’ and the Attorney General’s rejection of land threat is absolutely wrong. The idea of ‘leasing’ is a threat according to the Article 102 of the Constitution. 

The meaning of ‘leasing’ according to Article 102 of the Constitution is (1) not lawful, (2) not competent, (3) ‘alienation’ and (4) ‘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 debts of any person on his decease or insolvency. 

Let me re-quote the Attorney General from that article of Samoa Observer. It begins by some explanations of the Samoa Observer’s Reporter.

 [Lemalu says the Acts legal intent is crystal clear. He then points to Article 102 of the Constitution mentioned in s9 which state: “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 payment of the debts of any person on his decease or insolvency:”] 

 [Further, the Laws that protect families with interest in any customary land, mean that where any land is leased without proper consultation with all members of family that have connection or claim to such land, those not consulted can object against the lease or license.]

We can get the clear meaning of ‘NO ALIENATION OF CUSTOMARY LAND’ as in the Article 102 of the Constitution if we analyze it. I’m going to provide just few analysis points: 

1) It shall not be lawful or competent – (shall no be lawful) the assurance of the intention of the law is about forbidden, not allowed, prohibited and illegal. (shall not be competent) is not suitable or not appropriate according to any plans for success.

2) For any person – anyone including the Head of State, the Prime Minister, Members of Parliament, sa’o, matai and others.

3) To make alienation – alienated, isolation, detachment or separation

4) Or disposition – displacement, disfigured, deformed or destroyed

5) Of customary land – land owned by Indigenous (Samoans)

6) Or of any (interest) of customary land – (interest) is any importance, significance, meaning, consequence, awareness and attention such as sale and mortgage.

7) Or otherwise howsoever –  (otherwise) is  ‘or else’ and ‘if not’. (howsoever) is ‘by whatever means’ or ‘to whatever degree or extent’. 

Those are facts and evidences Mr. Editor. Those are same facts and evidences for honest discussions with our government in relation to our Customary Land. Accordingly, I have some questions for H.R.P.P and the Attorney General. 

If the L.T.R Acts 2008 is for freehold land only then:

1) Where does the idea of ‘leasing’ or the ‘law’ for the ‘leasing out of Customary Land’ come from?

 2) The ‘law’ for leasing out Customary Land – Is it lawful or unlawful according to the Article 102 of the Constitution?

3) If it is lawful then how?

4) If it is unlawful then where did they get the authority and jurisdiction to establish that unlawful law?

5) Also, if it is unlawful then what should be the right thing to be done for them?

 

Nanai Malonuu Lealaiauloto Nofoaiga

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