Customary owned beachfront property in Samoa where the owners operate beach fales for tourists
Source: PRESS SECRETARIAT
APIA, SAMOA – TUESDAY 27 FEBRUARY 2018: The Lands and Titles Registration Act 2008 “expressly says ‘alienation of customary land is prohibited,” Chief Executive of the Samoan Law Reform Commission, (SLRC) Telei’ai Lagipoiva Dr. Lalotoa Mulitalo Seumanutafa has reassured an international conference in New Zealand.
Invited to speak as a panellist at the Pacific Law, Custom and Constitutionalism meeting on the topic “Implications for Legal practice, Legislative Drafting & Constitutional Law Reform” given her background as a law draftsperson for Samoa and the Pacific, Dr. Mulitalo however was later asked to give the second keynote address on the topic “Customary Land Tenure”.
And she explained in detail why Samoa’s customary lands will not be alienated by the Land Titles Registration Act 2008, as perpetrated by opponents to the LTRA 2008.
In summary, the Dr. Mulitalo noted five reasons in statutory interpretation and in case law analysis that support this position are as follows:
- Nothing in the Act allows the alienation of customary land;
- The Act expressly says ‘alienation of customary land is prohibited’;
- The very limited reason the term ‘customary land’ is used in this Act is that it is only due to the operation of other existing laws;
- Other related laws that allow customary leases for public purposes have more influence on customary land than this Act;
- Since enactment in 2008, no court proceedings have ever challenged the provisions of the LTR Act on any allegation of customary land being alienated.
“Before the Land Titles Registration Act was enacted by the Parliament of Samoa in 2008, in its place was the Land Registration Act 1992/1993,” continued Mulitalo a former Law Lecturer with the Vanuatu based USP School of Law.
“As its Long Titles stated, this 1991/1993 Act was an Act to regulate the law relating to the registration of deeds affecting land.
“The Land Titles Registration Act 2008, at section 94 repealed the Land Registration Act 1992/1993.
“The Land Registration Act 1992/1993 was a deed system of registration, and the Land Titles Registration Act 2008 introduced the Torrens system of land registration in Samoa. As is referenced in a number of court cases in Samoa, the following are some basic differences between the Deed system and the Torrens system (under the 1992/1993.)
She noted that prior to 2008, a series of consultations were undertaken on the Land Titles Registration Bill 2006, 2007 until 2008 and enactment.
The consultations was led by a Cabinet appointed Commission headed by late Rev Oka Fauolo were carried out with the Samoa Law Society, the Judiciary, the relevant Government Ministries, the private sector and the public.
She reiterated that there is nothing in the Act that allows alienation.
“In interpreting laws, the first point of reference for the courts and any user of any law, is the law itself.
“What does it say, or not say (silent) on the issue? The issue is – is there likelihood customary land law would be alienated by the provisions of the LTR Act?
“An analysis of the provisions of the Act shows no provision of this Act allows this. In fact, the provisions of the Act prohibit this.”
Dr Mulitalo who graduated with a PhD from the University of Queensland reiterated that the LTRA Act itself expressly prohibits the alienation of land
Elaborated the SLRC Chief Executive;
“The provisions say that “No provision of this Act may be construed or applied to:
(a) Permit or imply the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or
(b) Permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the determination of title to customary land.
“Where in any Act, there is such a provision, it means exactly that. “No provision” allows the alienation of customary land.
“So for the Land Titles Act 2008, it has 98 sections, this means none of the 98 sections permit or is implied to permit the alienation of customary land.”
To support her presentation Dr. Mulitalo also did research into the Land Registry.
“A look at the Customary Land Lease Registry shows that out of the 81 % of the customary land of Samoa, some 1.5% only are under customary land lease.
“It is therefore a very small portion of customary land that is currently under lease under the Alienation of Customary Land Act 1965 (53 years old Act).
A total of 308 are registered customary land lease.
Of this number, some 31 are hotels and businesses whereas some 277 are other leases e.g. customary land leased for the LDS Church, Education, Digicel, Samoa Tel, SWA, Police, Other churches.
“These customary landowners are benefiting and enjoying from the customary land lease payments made under these lease, without them losing their customary land.”