Tricky devices and the Samoan customary Land

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Maua Faleauto

Today I record my thoughts regarding the protections placed within Samoa’s Constitution by Samoa’s leaders in 1961 so that Samoa’s customary land might remain held by the aiga of Samoa as our birthright gifted to us by our ancestors.

Samoa’s Constitution contains a provision that no device whatsoever may be used to get around the Constitutional protections to our Customary land. 

This means no plan, political tricks, false laws, agreement by foreign powers, corporations or individuals or propaganda can have any effect in removing our customary land rights.

This commentary is dedicated to Atua, the source, then our ancestors, who discovered the islands of Samoa and became its undisputed owners, and to our unborn children, the rightful heirs to Samoa and its traditional resources. In future, there will be those who ask how it was that Samoa’s customary land came under threat in the 21st Century in spite of Constitutional protections.

Some readers may wish to take action to right the great wrong done to the Samoan people by the Human Rights Protection Party in its plan to take ownership of all land from every Samoan individual and every aiga thereby enriching itself. In International Law, the highest title to land is an ancestral title. This has passed down through the generations to Samoans alive today. This land is not subject to taxes.

The protections against the alienation or taking of ownership from Samoan individuals and aiga are contained in Articles 2, 14, 15, 102 & 109 of the Constitution of Samoa.

The Constitution states in Article 2 (2) that any existing law and any law passed after the date of coming into force of [the] Constitution, which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Void means it is unlawful and of no effect as if it had never been made, never been passed by the H.R.P.P. Party.

Article 102 of the Constitution is broken by the Act because it permanently takes away the customary land rights of ALL Sa Moans. It transfers sovereignty or absolute ownership away from the Aiga and issues a secondary freehold title to a few members of the population, so that a few Sa Moans will become wealthy forever and the rest of Sa Moa will become economic slaves forced to work on other peoples land for a living and forced to rent space to live on and to be buried in. No more freedom for Samoans rent will be expensive and food will be just as costly.

Article 109 of the Constitution states that if the land structure of Sa Moa is to be changed there must be a national referendum and 2/3 of voters must agree to the end of customary land for our people.

Knowing this the H.R.P.P. have bypassed the National Referendum. In private they say that with a majority in parliament they do not need to hold a referendum because they rule Sa Moa.

This is not what our Constitution requires. Our Constitution requires a National Referendum before this act can be submitted to the Head of State for signing. It cannot become law until 2/3 of voters agree to the end of the customary land title for our people. 

A combination of unconstitutional law and political strategies are being used to take ownership of all customary land away from all Samoans living. Propaganda is used to reassure those whose land is affected. Those Samoans loyal to the H.R.P.P. government all lose their land as it comes under government control and subject to the same corruption. Land is being sold to wealthy individuals and corporations as landowners either sell to them or to government or their land is seized by banks to repay loans secured by mortgages on their land.

The entire process of converting customary land from ancestral title into freehold title and permitting it to be mortgaged is unconstitutional and unlawful yet the government pretends it is complying with the Rule of Law when in fact the entire process is unlawful and criminal.

We see the government reorganizing the Lands and Titles Court and creating banking structures in order to begin the transformation of customary land into freehold land so that it can be mortgaged.

Samoa’s supreme law is its Constitution. It provides a way for Samoans to agree to give up their land rights if 2/3 of Samoa’s voters agree to do so by national referendum. Further, the Head of State may not sign any Bill changing Samoa’s customary land system without a national referendum. However, a series of political tricks have allowed the H.R.P.P. to introduce a law forbidden by the Constitution and to avoid or merely ignore the protections. All the while false information and propaganda are used while customary land is being secretly taken.

Foreign countries, corporations and individuals may lust for Samoa’s land so that they may use her resources for themselves and their unborn children however it was the plan of our Constitutional forefathers and our ancestors that our land remain the source of our profit, our nutrition and our enjoyment. In acting to undermine our Constitution they act as enemies of our state, not friends. Lending money to politicians to undermine those protections is a criminal conspiracy.

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A Samoan Law Society Certificate falsely stated that the Land Titles Registration Bill did not affect customary land.

No referendum has taken place as required by our Constitution before the Land Titles Registration Act 2008 can become law.

The Head of State has signed the Land Titles Registration Bill even though expressly forbidden to do so by the Constitution without a referendum.

Please note that a provision exists that if the Head of State does not sign a Bill delivered to him for signature within 7 days it signs itself. This cannot apply to Customary Land or the Land Titles Registration Act 2008 as it is intended to get around the constitutional protection.

Further, another provision exists that a certificate from Parliament tendered up in a court of law in Samoa that a national referendum took place is proof that a national referendum took place. This is unconstitutional and does not satisfy the requirement of a national referendum. It is also a lie under oath on a public document.

Strangely the goals of the Asian Development Bank and the H.R.P.P. to mobilise and securitize (enable buying and selling and borrowing money against) customary land were proceeded with without public consultation or support and carried out in an unlawful way i.e. by the H.R.P.P. passing the Land Titles Registration Act 2008 in spite of its failure to comply with the necessary steps in law for changing land ownership as required by Articles 102 and 109 of The Constitution of the Independent State of Samoa which required a public referendum before any interest in customary land could be sold, mortgaged or taken to repay debt.

In 2004 the A.D.B. stated that there were no social issues or concerns in mobilizing and securitizing customary land. The fact that customary land would cease to exist and ownership of all land would pass to the State depriving all Samoans of their ancestral land without their consent was seen as a non-issue by the A.D.B.

The A.D.B. believed that the process of mobilizing and securitizing customary land would involve extensive consultations and participation. Results were to be widely disseminated as part of a comprehensive publicity strategy to ensure broad-based support during reform.

The H.R.P.P. Government committed to converting the customary land into a system whereby that customary land could be freely sold or used as security to guarantee loans without the consent of its citizens.

The role of the H.R.P.P. in the taking of ancestral title from all Samoans through an unlawful taking of sovereignty without the consent of customary land interest titleholders can be summed up in one word: abuse.

The role of the A.D.B. in turning a blind eye to the social upheaval and taking of customary land while funding such unlawful action can be summed up in one word: genocidal.

According to a Samoa Observer Article 2004 titled “Aussies get land survey job here,” it reads: Cabinet has approved the awarding of the contract for consulting services for Sustainable Management Land Administration Survey, to Land Equity International Pty Ltd, Australia.

This is for the total amount of USD$ 959, 546.00 ( about 2,593,000 tala), a government Press Secretariat news release said.

A World Bank loan under the Second Infrastructure Asset Management Project 2004-2008 will fund this contract.

The news release said the contract is divided into two components:

-Component 1: Survey and Geographic Information

(upgrade of the National Samoa Integrated Grid to a cadastral survey standard);

-Component2: Land Administration Reform (to reform the land administration system to a Torrens system).

An invitation for tenders’ bids was advertised and four contractors submitted bids. Land Equity International Pty Ltd was the most complying tender and met all the necessary requirements and conditions, the new release said.

 

The Asian Development Bank

Country Strategy and Program Update 2005-2006 Samoa August 2004

States that: “Land ownership and use in Samoa is an unresolved economic and social problem. The land is a central part of the lives and customs of Samoans. Around 80% of land is held is held in custom, while 16% is public and 4% is freehold land. Traditionally, customary ownership is vested in the elected head of an extended family (matai) or a local chief. Tackling the problems of a customary system is difficult and highly sensitive. Hence, solutions have not emerged and land issues continue to limit development. The Government has recognized the current system of land tenure as severely restricting national development.

The Government is establishing a law commission to recommend reforms in land tenure and procedures. A.D.B. supported recent work to provide a detailed legal analysis of the issues and a roadmap for change as well as a valuable framework for changing land laws. The findings of the law commission will be critical to formulate changes that will create a functioning land market. In late 2002, A.D.B. carried out a private sector assessment , which determined that assistance was needed to shorten the time to obtain a lease, ensure that lease agreements are reliable, allow untitled Samoans to lease land, codify customary practice, strengthen the rulings of the Lands and Titles Court, remove restrictions on freehold land, and reduce the cost and attestation requirements for land registration.

The Government requested A.D.B. to support a new generation of reforms to mobilize and securitize customary land. Such reforms could mean groundbreaking progress for Samoa and would promise significant regional impact. 

Considering how sensitive the land issue is in the Pacific, however, any reform measures will have to be handled with utmost cultural empathy and patience in close consultation with landowners and with a high degree of flexibility and innovation in timing and approach.

Therefore it is proposed that the reform process should be supported throughout the country program cycle.

 

Goal and purpose

The long-term goal is poverty reduction and economic growth by facilitating private sector development through the economic use of land for collateral. To achieve this, the technical assistance will support the initiation of the proposed new generation of reforms through a study on the options for mobilization and securitization of customary land.

 

Components and outputs

The technical assistance will help analyze the issues related to mobilization and securitization of customary land, and identify and assess options and solutions. The study will also lay out an implementation plan for comprehensive reforms in this area, including identification of areas for ADB assistance. The study will be prepared in close cooperation with the law commission and the output of the technical assistance will feed directly into its work program.

 

Expected results and deliverables

A study on ways to mobilize and securitize customary land. There are no social or environmental issues or concerns.

 

Plans for disseminating results/ deliverables

The process will involve extensive consultations and participation. Results will be widely disseminated as part of a comprehensive publicity strategy, as will be designed under the technical assistance to ensure broad-based support during reform.

 

So the Asian Development Bank decides that Samoa’s customary land must be mobilised or broken up then securitized -mortgaged as security for loans.

Mobilizing land means taking the interests of most Samoans and transferring the land to a few -this means poverty and economic slavery will be increased more foreigners will own Samoan land until foreigners own most of it.

The Prime Minister and the Government cannot achieve this destruction of our way of life unless we do nothing.

 

Maua Faleauto 

fsmtaua@gmail.com


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