Samoa AG: Customary land is not under legal threat by Freehold land laws

Source: Press Statement issued by Samoa Attorney General Lemalu Herman Retzlaff

There have been recent suggestions and questions asked of the Samoa Attorney General’s  office as to the supposed alienation of our customary land under freehold land legislation. 

In response I respectfully pose this question: what customary land has been legally converted to freehold land and / or 'sold off', since the enactment of the Lands Title Registration Act 2008? (LTRA) 

The answer is none. That is because it is a legal impossibility.  

That Act deals only with freehold land. It can never be utilised to interfere at all with our customary land rights that are protected in our Constitution. 

The LTRA was introduced to help protect and increase clarity for transaction for freehold land only. I emphasise that it actually therefore states in its own body in section 9 as follows: 

Section 9(4) and (5) of the LTRA: 

“(4) No provision of this Act may be construed or applied to:

i) permit or imply the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or

ii) 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.

 (5) Nothing in this Act permits the exercise of any power or affects any interest in customary land that could have been applied by law prior to the commencement of this Act.”

That provision is pretty clear when read, in its legal intent. 

Article 102 of our Constitution mentioned in s 9 states that: 

No alienation of customary land

 - It shall not be lawful or competent for any 

person to make any alienation or disposition of customary land or of any interest in 

customary land, 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:

Further, the Laws that protect families with interest in any customary land, mean that where any land is leased without proper consultation with all members of a family that have connection or claim to such land, those not consulted can object against the lease or license. The objection is then determined by the Land and Titles Court (see section 8 and 9 of the CLA 1965). The Judiciary have upheld such objections to protect the rights of those disaffected in such a manner and therein protecting rights to customary land. 

In the case that customary land is leased by mutual agreement then the beneficiary family that owns the customary land has rights under the lease and like all lessees can seek to enforce them when required including revoking the lease. The government via Ministry of Natural Resources and Environment  (MNRE) must oversee the compliance as a trustee assisting our families, and further assisted by the Attorney Generals office where required. 

The balance the law aims to achieve, is to protect the land while allowing for economic developments that create jobs and income both for the owners of the land and the community at large. But in all that the status of the land remains as customary and all legal protection therefore apply. It can never be legally turned into freehold land. 

There's been a suggestion also that provisions of the LTRA can give conversion powers for individuals turning customary land to freehold. 

Reference has been made to section 32 and 33 of the LTRA 2008 as giving matais the authority to sell off customary land. Respectfully, this is a fundamentally ill advised position. Sections 32 and 33 of the LTRA 2008 are concerned with ‘registered proprietor’ and sets out their relationship with existing estate and interest; and the rights of persons dealing with a proprietor if he or she is contracting, dealing or taking or proposing to take a transfer from a proprietor of land – that being freehold land. 

These provisions cannot magically have the effect of transforming customary land into free hold land. That notion or suggestion is flawed and incorrect. 

The LTRA 2008 defines ‘proprietor’ to mean: 

“in relation to an interest in land means any person seized or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy.”

The reference to ‘land’ is defined in the LTRA 2008 to mean: 

“includes all estates and interests, whether freehold or chattel, in real property, of every kind and description or any estate therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted but DOES NOT include customary land for the purpose of registration of land under this Act (other than registration of licenses or leases of customary land);”

Therefore where the words ‘proprietor’ or ‘registered proprietor’ appears in section 32 and 33 it is referring to an owner of land, but that reference to land does not include customary land.  

The LTRA 2008 does not have the effect of amending, repealing or adding to the provisions of Article 102 of the Constitution which specifically defines our customary land allowing all other legal protective measures to therefore by operation apply to it. 

Our Customary Land is not under any legal threat from laws that oversee specifically freehold land. 

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