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Tricky Devices and Samoa’s Customary Land

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 essay 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
st
Samoa’s customary land came under threat in the 21 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 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.

O lo o atagia mai i le tusi faavae vaega 2(2), so’o se tulafono o iai nei po’o se isi lava
tulafonoa e pasia i tua atu o le aso ua pasia ma faamalosia ai lenei tulafono faavae, ae lē o
gatasi ma lenei tulafono faavae, e le faatagaina.

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

O le uiga o le lē faatagaina o le solitulafono ma leai sona taunuuga e pei lava e leai se mea sa
pasia e le HRPP.

Article 102 of the Constitution is broken by the Act because it permanently takes away the
customary land rights of ALL Sa Moans. It issues a freehold title to a few members of the
population and destroys all customary land rights 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 Sa Moans rent will be expensive and food will be just as costly.
O le tulafono fo’i lenei ua ia solia le vaega 102 o le tulafono faavae o Samoa ona o le
aveeseina tumau o aia a tagata Samoa mai o latou fanua faale-aganuu. O lenei tulafono e
tuuina atu ai le pule u’u sa’oloto ini nai tagata o le atunuu ma faaumatia ai aia tatau i fanua
faale-aganuu ma avea ai se vaega itiiti o le atunuu e mauoa e faavavau ae o le isi vaega o le a
fai ma pologa, fosi e galueina fanua o isi mo le tausiga o le ola, fosi e totogi mea e nonofo ma
mea e tanu ai. Leai se saolotoga ona o le a taugata le totogi o mea e nonofo ai ma o meaa’i
foi o le a faapea ona taugata.

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.

I le vaega 109 o le tulafono faavae o lo o ta’ua ai afai e fia suia le taatitia mai o laueleele o
Sa Moa, e tatau ona fai se palota ma o lena palota e tatau ona 2/3 tagata palota e malilie i le
iuga o fanua faale-aganuu o tatou tagata.

Knowing this the HRP Party 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.
Ua iloa atu nei, ua alo ese le HRPP mai le palotaina o le atunuu atoa. Ua faalilolilo ona latou
faia ona fai mai i latou talu ai ona e toatele atu sui o le HRPP i le palemene o le mea lea e le
mafai ai ona faia se palota ma o latou e pule ia 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 customary land title for our people.

E le o le mea lenei e manaomia e le tulafono faavae. O le tatou tulafono faavae o lo o

manaomia mai le palotaina o le atunuu atoa i lenei mataupu a’e le’i tuuina atu i le Ao o le
malo mo le sainia ina. E le mafai ona avea lenei mea ma se tulafono seiloga e malilie le 2/3 o
tagata palota i le iuga o fanua faale-aganuu.

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 being stolen from them. Those Samoans loyal to the HRPP
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 land owners 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.

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 HRPP 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 be 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 corrupt politicians to undermine those protections is a
criminal conspiracy.

Follow my list:

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 HRPP 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
HRPP 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 ADB 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 ADB.

The ADB 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 HRPP Government committed to converting 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 HRPP in its theft 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: corrupt.

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

Samoa Observer Article 2004

Aussies get land survey job here

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. 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. ADB supported recent work to provide a detailed legal analysis of the issues and
a road map 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, ADB 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 ADB 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.

It also decides that Samoa's water will be sold to a foreign multi national.

It lies that it aims to eliminate poverty in Samoa.

...
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.

So while our PM was threatening to sue people who said he was bringing in the Torrens
System the HRPP paid an Australian firm to organise the destruction of customary land –
mendacious hypocrisy.

He cannot achieve this destruction of our way of life unless we do nothing.

Maua Faleauto
fsmtaua@gmail.com