Samoa & Maori Law Societies discuss ways to bridge tension between common and customary law

His Highness Tui Atua Tupua Tamasese Efi and  Masiofo Filifilia with participants of the Samoa and Maori Law Society joint conference  after the opening this morning

BY Lagi Keresoma

APIA, SAMOA – FRIDAY 8 JULY 2016: The main purpose of the Samoa Law Society and Te Hunga Roia Maori o Aotearoa Law Society’s joint conference now in progress in Apia, is to look at ways to address tension between common law and traditions and custom.

“This is an inaugural joint conference, the first time both Maori and Samoa lawyers have come together to discuss a  number of key issues, and we are starting by looking at the tension between custom and law,” says Samoa Law Society (SLS) President Mareva Betham-Annandale.

The conference theme “Where is our island? Navigating the waves of custom and law-Finding ourselves in our Islands” hopes to address and share ideas on how to bridge the tension.

Mareva said although Samoa’s Land and Title Court deals with customary issues for the past 54 years as an independent country, the law does not emphasize Samoa’s traditions and culture.

Mareva said that there are laws in the constitution, but not extensive to the point that really emphasized tradition and culture.

As for Maori, they have a Maori Land Court and there are a number of similarities and situations where Samoa can learn from the Maoris and how they operate, said Mareva.

She also made reference to recent reports on a Commission of Inquiry into the work of the Samoa Lands and Titles Court work. “So it’s timely that these issues between custom and law be discussed to inform  and generate ideas on how to address these tensions.”

SLS hopes to submit something to the Commission of Inquiry at some point, but it is important to look at the tension.

The key purpose of the 2 day conference is to “discuss, bring together and establish a more formal manner of networking, discussion and professional development between Maori and Samoa lawyers.

Referring to Samoa’s Electoral Act and the common law, Mareva said that under the Electoral Act, politicians can provide a ‘o’o’ to his district, but under the common law, that is considered corrupt action on the part of the politician.

“At the moment, we  need to look at the process and procedure that are required to ensure that is natural justice in the work of the Lands and Title Court, and that is not to say that there is an application of natural justice, but we need to codify court processes and procedures,” said Mareva.

“Other issues on the agenda looks at how effective the Lands and Titles Court in actually making decisions pertaining to our customary lands and titles,” said Mareva.

She acknowledges the difficult work faced by the Lands and Titles Court Judges, and she hopes the Commission of Inquiry will give the Samoa Law Society the opportunity to provide assistance in proposing and develop a court procedure, and also to assist in how to ensure that natural justice is observed.

The conference was officially opened by His Highness, the Head of State, Tui Atua Tupua Tamasese Efi.

His Highness posed the question “Can custom and law survive a direct competition to a state dual model?”

“The answer is only positive if a fresh approach to customary law is adopted and such approach is the acceptance of a dynamic view of customary law and common law. As both embody values for the proper ordinary of society,” said His Highness.

His Highness said the central concept of law and boundaries in Samoa is defined in the word tulafono (law).

Tula he said is a respectful word for a chief’s head and is considered a sacred place where wisdom and discernment resides. Fono is a word for meeting or council, and in earlier times, the fono was assumed to not only involve a dialogue between them and God.

“Rarely will someone imagine tulafono to refer to ‘wise heads coming together in council’, he said.

His Highness challenged to the participants of the conference is to see the dreams of our ancestors in finding peace and direction. (See separate story and video clip of His Highnesses address).

Conference participants were officially welcomed in an ava ceremony at the Taumeasina Island Resort this morning. The conference ends tomorrow with Chief Justice Patū Tiava’asu’e Falefatu Sapolu’s closing remarks.

Presentations:

  • Taulapapa Brenda Heather-Latu – Custom and Constitution – a double hulled waka or 2 boats running aground on a Samoan reef?
  • Judge Graig Coxhead – The constitutional status of Te  Tiriti  o Waitangi/ treaty of Waitangi.
  • Judge Miharo Armstrong, Rachel Mullins – Retention, Development & utilization of Maori land – Finding the right balance.
  • Tuatagaloa Ming Leung Wai:  Promoting the economic use of customary land –Will that result in the alienation  of our lands?
  • Justice Tafaomalo Leilani Tuala-Warren:   How culture/cultural norms assist with addressing violence in families.
  • Tavake Afeaki, Maiava Visekota:  A focus on modern day alternative dispute resolution processes in a Samoan and maori context.
  • Teleiai Dr, Lalotoa Mulitalo:  Finding ourselves in our parliament  laws, the Electoral Act & Village Fono Act –Samoa.
  •  Jamie Feguson, Judge Vaepule  Vaemoa Vaai:  A focus on the tension between  custom  and law relating  to the rights to the deceased.
  • Judge Ida Malosi ,Judge Emma Aitken: The treaty of Friendship – taking a special relationship  to the next level  (a judicial perspective)