Land Reforms in Samoa

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• 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?

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Visionstewardship of creation!!!
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ABOUT SAMOA
VILLAGES 340
DEPENDENCY ON NATURAL RESOURCES
CUSTOMARY LAND 82
COASTAL SETTLEMENT
POPULATION 180,000
DESTRUCTION FROM OFA, VAL HETA, etc.

• Vulnerable Location
• 65 sensitive
• 20 medium
• 11 Highly Sensitive
• 4 Coastline resilient to
• Coastal hazards

GDP Est. gt1billion SAT
NATURAL DISASTERS
gt74 of all Coastal Settlement are located In
low lying areas
COASTAL POPULATION
INFRASTRUCTURE
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Political Rationale, Drivers, and Why.
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POLITICAL, ECONOMIC, CULTURAL, SOCIAL CHALLENGE
FOR ALL SAMOANS!!! Customary Lands
the government has
indicatedit will devise a strategy to improve
access to customary landand 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 ADBs
participatory poverty surveysalso 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
http p//www.adb.org
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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.
http p//www.adb.org
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• The three-pronged strategy of ADB for Samoa
  directly support the Governments SDSand is
  consistent with ADBs Pacific Strategy for the
  New Millennium.
• 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 public-private partnerships and
  enhancing accountability and performance of
  state-owned enterprises.
• To enhance access to, and delivery of, basic
  social services by providing infrastructure and
  enhancing management and performance of relevant
  public sector institutions
• Help improve living standards and reduce income
  disparity through improved equity and access to
  quality education for all Samoans.

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For 2004-2006 three firm loans programmed in
education, renewable energy, sanitation and
drainage at an average of USD5 million per year.
A standby allocation of USD3 million has also
been promised for 2006, consistent with the
high-case scenario, to help the Government
mobilize and securitize customary land.
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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

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• 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

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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.

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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
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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 US12.80 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.  
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• 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
• The granting of lease or license of any CL or of
  any interest therein
• the taking of any CL or any interest therein for
  public purposes

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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
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• 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.

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• 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 proprietorof any estate
  or interest in landshall except in the case of
  fraud, hold the same, subject to such other
  estates and interestsabsolutely 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

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• 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

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• 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!

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• 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)

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• 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
  (Sao) 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

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• 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 LT
• 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.

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• 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.

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• 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!

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• 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 Sao, 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!

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It is bad enough to be colonized by
foreigners! But unforgivable and criminal -To be
colonized by our own people!!!Thank You