Picture: Fiu Mata'ese Elisara

Source: Samoa observer

The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands” – Chiefs tell A.D.B.

A group of village chiefs has warned the Asian Development Bank (A.D.B) that the alienation of customary land in Samoa could lead to “social unrest, conflict and violence.

What’s more, they claim that Samoans stand to face “dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.

The warning is contained in the official complaint by the group submitted to the A.D.B at the beginning of the month.

A copy of the complaint has been obtained by the Sunday Samoan. It has also been made available online.

The group is made up of Fiu Mata’ese Elisara, of Sili, Leuluaiali’i Tasi Malifa, of Afega, Telei’ai Dr. Sapa Saifaleupolu, of Samatau and Lilomaiava Ken Lameta, of Vaimoso and Safotu.

They are objecting to a series of A.D.B-backed reforms that could lead to the alienation of customary land. They claim the reforms are already taking place, including a multi-million-tala agribusiness support project that was recently signed.

As of yesterday, the group is adamant that if their grievances are not adequately addressed by the Bank, they will take the matter to the International Human Rights Court.

Leuluaiali’i, who is a lawyer by profession, maintains that land for Samoans – and anyone else for that matter – is an issue of human rights.

When the official complaint was filed on the eve of the S.I.D.S. conference in Samoa, the Sunday Samoan contacted the A.D.B for a comment.

In response, A.D.B’s Senior External Relations Officer, Sally Shute-Trembath wrote: “Thanks for the opportunity to comment on your story. I will contact our Samoa country team leader for comment and get back to you.”

That was on Saturday 30 August 2014. At press time last night, the Bank has not delivered on that promise.

Asked for an update, Fiu confirmed that they have been communicating with the Bank’s Senior Facilitation Specialist with regards to their complaint. He, however, was not at liberty to divulge the subject of their communications.

Meanwhile, Fiu reiterated that they remain gravely concerned that the reforms, which have been carried out without meaningful consultation of Samoan people, could have the effect of individualising control over land throughout the country, and ultimately placing large tracts of land in the hands of banks.

Fiu reminded that 80 per cent of land in Samoa is governed under customary systems, “which entail collective ownership.”

According to the official complaint, the group objects “to the A.D.B’s determination to dispense with our customary laws and systems.”

The group notes that such systems have for years “successfully safeguarded the interests of the aiga … in the interests of expediently transforming land parcels into commodities to be absorbed by global financial markets.

“The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands,” the complaint reads.

“Meanwhile, members of our aiga will face dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.”

“It is also foreseeable that such fundamental transformations to customary land tenure will lead to social unrest, conflict and violence. We again point to recent scandals in Papua New Guinea to underscore the material nature of these risks.”

“Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century.”

“While financial markets thrive on systems that facilitate swift and seemingly simple land transactions, the Samoan aiga does not.”

The official complaint in full is published below:

Complaints Receiving Officer Accountability Mechanism Asian Development Bank 6 ADB Avenue

Dear Complaints Receiving Officer,

1. We, the undersigned complainants are matais and high chiefs, who are deeply concerned about the individualization, financialisation and alienation of customary land that is occurring under the guidance of the Asian Development Bank (ADB)’s Technical Assistance Promoting Economic Use of Customary Land project, which has been carried out without meaningful consultations across Samoa. We also object to the Agribusiness Support Project, which appears to be aimed at further encouraging the financialization of arable land under customary tenure, without appropriate mechanisms to ensure that benefits flow to local families and villages.

2. The cumulative long-term impact of these ADB interventions will be severely detrimental to our people, including land alienation and dispossession. These reforms are incompatible with the indigenous culture and political institutions of Samoa, and they are inconsistent with the needs and aspirations of the Samoan people.

3. We believe that these harms and anticipated harms have resulted from ADB’s failure to comply with its policies and procedures. We note in particular that the ADB failed to conduct appropriate environmental and social due diligence, to undertake meaningful consultation, and to trigger the policy on Indigenous Peoples in non-compliance with the Safeguard Policy Statement (SPS) and OM C3: Incorporation of Social Dimensions into ADB Operations. This failure has meant that critical procedural and substantive protections have been absent throughout the reform process, despite the fundamental and adverse changes being imposed on fa’aSamoa, our way of life. Moreover, it has meant a missed opportunity to achieve the laudable goal of promoting economic use of customary land, through culturally, socially and politically appropriate development inputs and support, without meddling with our tenure system.

4. We request that you send all correspondence on this matter to Mr. Fiu Mata’ese Elisara (fiuelisara51@yahoo.com); Mr. Leuluaialii Tasi Malifa (vaoga@yahoo.com); Mr. Lilomaiava Ken Lameta (kslameta9585@gmail.com); and Dr. Telei’ai Sapa Saifaleupolu (s_saifaleupolu@yahoo.com.au). We have prepared this complaint with support from Inclusive Development International (IDI). We request that you also include Natalie Bugalski, Legal Director at IDI, (natalie@inclusivedevelopment.net) in correspondence regarding this complaint.

5. The complaint is organised as follows: Section I describes the projects that are the subject of this complaint; Section II explains the anticipated harms; Section III sets out ADB’s non-compliance with its policies and procedures; Section IV describes the remedies we are seeking from ADB; and Section V describes our unsuccessful effort to address our grievances with the ADB, resulting in the submission of this complaint.

I. The Projects: Promoting Economic Use of Customary Land TA and Agribusiness Support Project

6. In 2013 the ADB approved the provision of technical assistance (TA) on a grant basis to the Government of Samoa for Promoting Economic Use of Customary Land, Phase III. The TA follows two preceding TAs, Phase I and II, which make up the overall project. The first TA of the series aimed to “increase the efficiency and effectiveness with which landowners and investors (domestic and foreign) implement agreements to utilize customary land for economic purposes.” Specific expected outputs included legislative reform and public education towards this end. The expected outcome of Phase II was an improved customary land-leasing framework to be reflected in an expansion in the types of collateral available, and the increase in the number of leases awarded and the amount of leasable customary land available to be utilized for economic purposes. A main output of Phase II was the establishment of the Customary Land Advisory Commission (CLAC), to advise the Government on customary land reforms, lead the implementation of activities and coordinate all customary land stakeholders. Other expected outputs included the establishment of a “one-stop shop to improve services to the community on customary land matters and to be the primary source of information on options for economic development” and a “functional database of leased and leasable land, through developing a registry of customary land.”

7. The current phase of the TA builds on the previous phases by aiming to improve access to credit for business investment. The expected outcome of the TA is “the use of customary land leases as collateral.” One of the main obstacles identified by the ADB to achieving the goals of the TAs is the reluctance of commercial banks to provide mortgages over customary land leases because of perceived “legal ambiguity.” The TA outputs are thus aimed at addressing this obstacle. Under the TA, the CLAC will work closely with the ANZ Bank, an unnamed overseas investor and the Government to broker a mortgage deal in order to establish a precedent. The second output is the establishment of a leasing framework to, inter alia, facilitate registering and publicizing a security interest and repossessing and reselling the lease in the event of default. 
  
8. In 2014 the ADB approved a US$5million dollar grant to the Government of Samoa for agribusiness support. In addition to technical assistance and business support, the grant provides for $2 million in collateral matching and $1 million in equity to be lent by financial intermediaries for qualified loans to promote export oriented agriculture. The Project Administration Manual confirms that questions about land control and customary land tenure are central to this project. It states that: “land and questions of authority over it are very common sources of disputes within extended families, and of conflicts within villages. Recognition of these issues, and provisions for overcoming any obstacles they present to private enterprise, will therefore be essential for success for agribusinesses that depend on village land or small holders.”

9. It is clear that the proposed project aims to contribute to a system of individualization and financialisation of customary land through the provision of financing to promote commercial agribusiness on leased parcels. The project, in conjunction with the series of TAs, therefore has profound implications for customary land tenure in Samoa. Due to the strong linkages and interdependencies of these projects, and their anticipated cumulative impacts, both - the series of TAs and the FI project - are the subject of this complaint.

II. Anticipated Direct and Material Harm

10. Land is an integral aspect of Samoan identity. The customary land tenure system guarantees a durable and lasting security for all Samoan people. It provides eligibility for all members of an aiga (extended family) to reside on and use family lands. The system disallows individual ownership of land even for the sa’o (paramount chief) of the family. Rather it treats land as the perpetual property of the whole family and regards the paramount chief as the trustee. The system allows for equitable allocation of family lands to all its members thus availing ample opportunities for all to provide for their needs through subsistence and commercial development.

11. Land alienation for economic development is incompatible with our system of customary land tenure. Leasing of customary lands is not forbidden per se and the practice is not new: leaseholds have been legally recognized and regulated by the 1965 Alienation of Customary Lands Act (the Act). However, leasing of land to outsiders for long durations - as would be necessary to secure a mortgage - comes perilously close to land alienation, forbidden by our customary laws as well as the Constitution of Samoa. Vesting unfettered power to enter into long-term lease agreements to be used as collateral in a single aiga member with authority, the matai or sa’o, in a manner that bypasses traditional consultative and consensus-seeking processes is tantamount to alienation of customary lands. This is the hidden danger.

12. A 1966 Amendment to the Act empowers the Minister of Lands, Surveys and Environment to grant a lease over customary land “for an authorized purpose approved by the [same] Minister” without the permission of the landowning group. Under ADB-driven reforms, the Act has now been further amended to legalize mortgages over leases of customary land granted by the Minister. This amendment, with undeniably fundamental implications for customary land tenure, was snuck in as a final provision of the Customary Land Advisory Commission Act (2012), which otherwise has no direct relevance to the 1965 Act. With the powers vested in the Minister already susceptible to significant risks, these reforms allowing leasehold mortgages - without any consultation whatsoever with the aiga - are exceedingly imprudent. In addition to destroying our time-honoured customary system of social welfare, the reforms expose land transactions to manipulation and corruption, as has occurred in the similar Special Agriculture and Business Leases (SABL) system in Papua New Guinea.

13. We are also concerned about the complete silence in all documents on the issue of improvements to land made by the lessee, which are likely to be financed through a mortgage. Will the land-owning group be responsible for compensating the lessee for these improvements at the end of the lease as a condition for regaining control of the land? In cases in which the Minister enters into lease agreements on behalf of land-owning groups, communities will have no control whatsoever over terms of the lease, including in relation to such issues.

14. For the reasons above, the ADB-backed reforms aimed at establishing such a system in Samoa are repugnant to our customary land tenure laws, and their entrenched protection under the Constitution. We note with concern the ADB’s evident failure to respect or comprehend the importance of customary processes to ensuring equitable and sustainable access to and use of land and natural resources, as evident in the following passage from the phase III TA Report:
There is...high demand for customary lands from foreign investors. However, the landowners need to organize themselves to take advantage of this. The Alienation of Customary Land Act, 1965 recognizes that the matai (family chief) can, on behalf of the family, offer to lease the family’s customary land should there be an interested investor. However, while the land is registered in the name of the matai, the legal system recognizes all members of the group as owners. Any dealing with foreign investors therefore requires that all members of the landowning group are identified and have their names recorded on any land dealing, and all members of the landowning group (including absentee owners) must consent to any dealing. These requirements prolong the approval process and discourage long-term land development.”

15. We object to the ADB’s determination to dispense with our customary laws and systems, which have successfully safeguarded the interests of the aiga for millenia, in the interests of expediently transforming land parcels into commodities to be absorbed by global financial markets. The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands. Meanwhile, members of our aiga will face dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment. It is also foreseeable that such fundamental transformations to customary land tenure will lead to social unrest, conflict and violence. We again point to recent scandals in Papua New Guinea to underscore the material nature of these risks. Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century. While financial markets thrive on systems that facilitate swift and seemingly simple land transactions, the Samoan aiga does not.

16. As observed of ADB project documentation by Samoan scholar Elora Raymond: Nowhere in these reports is there a description... of the way in which communal tenure services as a social safety net, sits at the core of the political structure, and underpins social relations of familial and neighborly obligation. There is no discussion about how to constitute financial subjects, encourage educated borrowing and credit worthy behavior in a country where, to this day, even personal items such as jewelry, clothing and shoes flow like library books throughout the aiga. Cultural attitudes towards ownership are effaced and land tenure is presented as akin to a textbook case or a blank slate upon which reform will be enacted.

17. Professor Iati Iati of the University of Otago, New Zealand, describes the deep-seated implications for Samoa of alienation of lands under customary tenure, beyond the anticipated direct socio-economic impacts for communities. Professor Iati explains that: ...the repercussions will extend beyond being a land ownership issue. Instead, it will have very significant implications for the traditional Samoan political framework. This comprises the customary socio-political practices and institutions that Samoans believe were in place prior to contact with Europeans, and which have been incorporated into their contemporary political framework on this basis. The traditional political framework applies primarily to the local governance sphere of the nu‘u (polity), which is made up of āiga (extended families) whose origins and/or roots have been intertwined into the fa‘alupega (constitution) of a nu‘u. During pre- contact times, nu‘u were autonomous political entities, and despite the formation of a national political domain in 1962, which introduced a national government, many still operate as if their autonomy and independence remains unchanged (Iati 2007). Land forms the foundation of this framework; it is attached to suafa (titles), which are owned and controlled by āiga and nu‘u. Āiga and nu‘u bestow these on individuals who they elect to be their matai, and the suafa gives the matai the authority to govern the lands associated with the suafa. If land is separated from suafa, then the āiga and nu‘u lose control over these lands, because their ownership is based on their control of suafa. Consequently, their authority in the political arrangement pertinent to this governance sphere is undermined.

18. Professor Iati concludes that without this authority, “the role and existence of the nu‘u and āiga as pillars of governance in Samoa will rest on precarious foundations.”

19. We regretfully note that the superficial and depoliticized analysis contained in the ADB project documentation fails completely to grasp these socio-political dimensions and risks of the reforms. The passage (above) from the Phase III TA report expresses a clear intention to not only have land registered under the name of an individual, but for the legal system to empower the individual to unilaterally lease tracts of land, without limits to size or duration. Pursuant to the Land Titles Registration Act of 2008, leaseholds over customary lands are to be registered in much the same way as ownership rights. Despite ADB’s attempts to differentiate this set of legal processes from those that would facilitate alienation of customary land through outright sale, we are convinced that the effect is one and the same.

20. The current TA’s objective of facilitating access to credit through the use of customary land leases as collateral - by establishing a precedent transaction between a foreign investor and a foreign Bank and establishing a framework to facilitate repossessing and reselling the lease in the event of default - serves to exacerbate the social, economic, cultural and political risks of the reforms to date. As one measure of the risks involved, we point to the high rates of default on loans by indigenous Samoans: The ADB reported that 46 percent of loans in its small business loan guarantee scheme were in arrears or foreclosed by completion of the project, and in the nine months after the project was completed the number of loans in arrears had increased by 50 percent.21 If defaults occur, foreign banks that own the debt can seize decades-long leases over large tracts of customary land. This is not the path to economic and financial development of Samoa that we elect to take. Instead, this is the path to alienation; deprivation and marginalisation that is reflective of the experience of the Hawai’ian people, Tahitians and the Kanaks of New Caledonia. The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands” – Chiefs tell A.D.B.

A group of village chiefs has warned the Asian Development Bank (A.D.B) that the alienation of customary land in Samoa could lead to “social unrest, conflict and violence.

What’s more, they claim that Samoans stand to face “dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.

The warning is contained in the official complaint by the group submitted to the A.D.B at the beginning of the month.

A copy of the complaint has been obtained by the Sunday Samoan. It has also been made available online.

The group is made up of Fiu Mata’ese Elisara, of Sili, Leuluaiali’i Tasi Malifa, of Afega, Telei’ai Dr. Sapa Saifaleupolu, of Samatau and Lilomaiava Ken Lameta, of Vaimoso and Safotu.

They are objecting to a series of A.D.B-backed reforms that could lead to the alienation of customary land. They claim the reforms are already taking place, including a multi-million-tala agribusiness support project that was recently signed.

As of yesterday, the group is adamant that if their grievances are not adequately addressed by the Bank, they will take the matter to the International Human Rights Court.

Leuluaiali’i, who is a lawyer by profession, maintains that land for Samoans – and anyone else for that matter – is an issue of human rights.

When the official complaint was filed on the eve of the S.I.D.S. conference in Samoa, the Sunday Samoan contacted the A.D.B for a comment.

In response, A.D.B’s Senior External Relations Officer, Sally Shute-Trembath wrote: “Thanks for the opportunity to comment on your story. I will contact our Samoa country team leader for comment and get back to you.”

That was on Saturday 30 August 2014. At press time last night, the Bank has not delivered on that promise.

Asked for an update, Fiu confirmed that they have been communicating with the Bank’s Senior Facilitation Specialist with regards to their complaint. He, however, was not at liberty to divulge the subject of their communications.

Meanwhile, Fiu reiterated that they remain gravely concerned that the reforms, which have been carried out without meaningful consultation of Samoan people, could have the effect of individualising control over land throughout the country, and ultimately placing large tracts of land in the hands of banks.

Fiu reminded that 80 per cent of land in Samoa is governed under customary systems, “which entail collective ownership.”

According to the official complaint, the group objects “to the A.D.B’s determination to dispense with our customary laws and systems.”

The group notes that such systems have for years “successfully safeguarded the interests of the aiga … in the interests of expediently transforming land parcels into commodities to be absorbed by global financial markets.

“The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands,” the complaint reads.

“Meanwhile, members of our aiga will face dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.”

“It is also foreseeable that such fundamental transformations to customary land tenure will lead to social unrest, conflict and violence. We again point to recent scandals in Papua New Guinea to underscore the material nature of these risks.”

“Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century.”

“While financial markets thrive on systems that facilitate swift and seemingly simple land transactions, the Samoan aiga does not.”

The official complaint in full is published below:

Complaints Receiving Officer Accountability Mechanism Asian Development Bank 6 ADB Avenue

Dear Complaints Receiving Officer,

1. We, the undersigned complainants are matais and high chiefs, who are deeply concerned about the individualization, financialisation and alienation of customary land that is occurring under the guidance of the Asian Development Bank (ADB)’s Technical Assistance Promoting Economic Use of Customary Land project, which has been carried out without meaningful consultations across Samoa. We also object to the Agribusiness Support Project, which appears to be aimed at further encouraging the financialization of arable land under customary tenure, without appropriate mechanisms to ensure that benefits flow to local families and villages.

2. The cumulative long-term impact of these ADB interventions will be severely detrimental to our people, including land alienation and dispossession. These reforms are incompatible with the indigenous culture and political institutions of Samoa, and they are inconsistent with the needs and aspirations of the Samoan people.

3. We believe that these harms and anticipated harms have resulted from ADB’s failure to comply with its policies and procedures. We note in particular that the ADB failed to conduct appropriate environmental and social due diligence, to undertake meaningful consultation, and to trigger the policy on Indigenous Peoples in non-compliance with the Safeguard Policy Statement (SPS) and OM C3: Incorporation of Social Dimensions into ADB Operations. This failure has meant that critical procedural and substantive protections have been absent throughout the reform process, despite the fundamental and adverse changes being imposed on fa’aSamoa, our way of life. Moreover, it has meant a missed opportunity to achieve the laudable goal of promoting economic use of customary land, through culturally, socially and politically appropriate development inputs and support, without meddling with our tenure system.

4. We request that you send all correspondence on this matter to Mr. Fiu Mata’ese Elisara (fiuelisara51@yahoo.com); Mr. Leuluaialii Tasi Malifa (vaoga@yahoo.com); Mr. Lilomaiava Ken Lameta (kslameta9585@gmail.com); and Dr. Telei’ai Sapa Saifaleupolu (s_saifaleupolu@yahoo.com.au). We have prepared this complaint with support from Inclusive Development International (IDI). We request that you also include Natalie Bugalski, Legal Director at IDI, (natalie@inclusivedevelopment.net) in correspondence regarding this complaint.

5. The complaint is organised as follows: Section I describes the projects that are the subject of this complaint; Section II explains the anticipated harms; Section III sets out ADB’s non-compliance with its policies and procedures; Section IV describes the remedies we are seeking from ADB; and Section V describes our unsuccessful effort to address our grievances with the ADB, resulting in the submission of this complaint.

I. The Projects: Promoting Economic Use of Customary Land TA and Agribusiness Support Project

6. In 2013 the ADB approved the provision of technical assistance (TA) on a grant basis to the Government of Samoa for Promoting Economic Use of Customary Land, Phase III. The TA follows two preceding TAs, Phase I and II, which make up the overall project. The first TA of the series aimed to “increase the efficiency and effectiveness with which landowners and investors (domestic and foreign) implement agreements to utilize customary land for economic purposes.” Specific expected outputs included legislative reform and public education towards this end. The expected outcome of Phase II was an improved customary land-leasing framework to be reflected in an expansion in the types of collateral available, and the increase in the number of leases awarded and the amount of leasable customary land available to be utilized for economic purposes. A main output of Phase II was the establishment of the Customary Land Advisory Commission (CLAC), to advise the Government on customary land reforms, lead the implementation of activities and coordinate all customary land stakeholders. Other expected outputs included the establishment of a “one-stop shop to improve services to the community on customary land matters and to be the primary source of information on options for economic development” and a “functional database of leased and leasable land, through developing a registry of customary land.”

7. The current phase of the TA builds on the previous phases by aiming to improve access to credit for business investment. The expected outcome of the TA is “the use of customary land leases as collateral.” One of the main obstacles identified by the ADB to achieving the goals of the TAs is the reluctance of commercial banks to provide mortgages over customary land leases because of perceived “legal ambiguity.” The TA outputs are thus aimed at addressing this obstacle. Under the TA, the CLAC will work closely with the ANZ Bank, an unnamed overseas investor and the Government to broker a mortgage deal in order to establish a precedent. The second output is the establishment of a leasing framework to, inter alia, facilitate registering and publicizing a security interest and repossessing and reselling the lease in the event of default. 
  
8. In 2014 the ADB approved a US$5million dollar grant to the Government of Samoa for agribusiness support. In addition to technical assistance and business support, the grant provides for $2 million in collateral matching and $1 million in equity to be lent by financial intermediaries for qualified loans to promote export oriented agriculture. The Project Administration Manual confirms that questions about land control and customary land tenure are central to this project. It states that: “land and questions of authority over it are very common sources of disputes within extended families, and of conflicts within villages. Recognition of these issues, and provisions for overcoming any obstacles they present to private enterprise, will therefore be essential for success for agribusinesses that depend on village land or small holders.”

9. It is clear that the proposed project aims to contribute to a system of individualization and financialisation of customary land through the provision of financing to promote commercial agribusiness on leased parcels. The project, in conjunction with the series of TAs, therefore has profound implications for customary land tenure in Samoa. Due to the strong linkages and interdependencies of these projects, and their anticipated cumulative impacts, both - the series of TAs and the FI project - are the subject of this complaint.

II. Anticipated Direct and Material Harm

10. Land is an integral aspect of Samoan identity. The customary land tenure system guarantees a durable and lasting security for all Samoan people. It provides eligibility for all members of an aiga (extended family) to reside on and use family lands. The system disallows individual ownership of land even for the sa’o (paramount chief) of the family. Rather it treats land as the perpetual property of the whole family and regards the paramount chief as the trustee. The system allows for equitable allocation of family lands to all its members thus availing ample opportunities for all to provide for their needs through subsistence and commercial development.

11. Land alienation for economic development is incompatible with our system of customary land tenure. Leasing of customary lands is not forbidden per se and the practice is not new: leaseholds have been legally recognized and regulated by the 1965 Alienation of Customary Lands Act (the Act). However, leasing of land to outsiders for long durations - as would be necessary to secure a mortgage - comes perilously close to land alienation, forbidden by our customary laws as well as the Constitution of Samoa. Vesting unfettered power to enter into long-term lease agreements to be used as collateral in a single aiga member with authority, the matai or sa’o, in a manner that bypasses traditional consultative and consensus-seeking processes is tantamount to alienation of customary lands. This is the hidden danger.

12. A 1966 Amendment to the Act empowers the Minister of Lands, Surveys and Environment to grant a lease over customary land “for an authorized purpose approved by the [same] Minister” without the permission of the landowning group. Under ADB-driven reforms, the Act has now been further amended to legalize mortgages over leases of customary land granted by the Minister. This amendment, with undeniably fundamental implications for customary land tenure, was snuck in as a final provision of the Customary Land Advisory Commission Act (2012), which otherwise has no direct relevance to the 1965 Act. With the powers vested in the Minister already susceptible to significant risks, these reforms allowing leasehold mortgages - without any consultation whatsoever with the aiga - are exceedingly imprudent. In addition to destroying our time-honoured customary system of social welfare, the reforms expose land transactions to manipulation and corruption, as has occurred in the similar Special Agriculture and Business Leases (SABL) system in Papua New Guinea.

13. We are also concerned about the complete silence in all documents on the issue of improvements to land made by the lessee, which are likely to be financed through a mortgage. Will the land-owning group be responsible for compensating the lessee for these improvements at the end of the lease as a condition for regaining control of the land? In cases in which the Minister enters into lease agreements on behalf of land-owning groups, communities will have no control whatsoever over terms of the lease, including in relation to such issues.

14. For the reasons above, the ADB-backed reforms aimed at establishing such a system in Samoa are repugnant to our customary land tenure laws, and their entrenched protection under the Constitution. We note with concern the ADB’s evident failure to respect or comprehend the importance of customary processes to ensuring equitable and sustainable access to and use of land and natural resources, as evident in the following passage from the phase III TA Report:
There is...high demand for customary lands from foreign investors. However, the landowners need to organize themselves to take advantage of this. The Alienation of Customary Land Act, 1965 recognizes that the matai (family chief) can, on behalf of the family, offer to lease the family’s customary land should there be an interested investor. However, while the land is registered in the name of the matai, the legal system recognizes all members of the group as owners. Any dealing with foreign investors therefore requires that all members of the landowning group are identified and have their names recorded on any land dealing, and all members of the landowning group (including absentee owners) must consent to any dealing. These requirements prolong the approval process and discourage long-term land development.”

15. We object to the ADB’s determination to dispense with our customary laws and systems, which have successfully safeguarded the interests of the aiga for millenia, in the interests of expediently transforming land parcels into commodities to be absorbed by global financial markets. The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites, with short-term monetary gains to individuals vested with unfettered powers over our lands. Meanwhile, members of our aiga will face dispossession from potentially large-tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment. It is also foreseeable that such fundamental transformations to customary land tenure will lead to social unrest, conflict and violence. We again point to recent scandals in Papua New Guinea to underscore the material nature of these risks. Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century. While financial markets thrive on systems that facilitate swift and seemingly simple land transactions, the Samoan aiga does not.

16. As observed of ADB project documentation by Samoan scholar Elora Raymond: Nowhere in these reports is there a description... of the way in which communal tenure services as a social safety net, sits at the core of the political structure, and underpins social relations of familial and neighborly obligation. There is no discussion about how to constitute financial subjects, encourage educated borrowing and credit worthy behavior in a country where, to this day, even personal items such as jewelry, clothing and shoes flow like library books throughout the aiga. Cultural attitudes towards ownership are effaced and land tenure is presented as akin to a textbook case or a blank slate upon which reform will be enacted.

17. Professor Iati Iati of the University of Otago, New Zealand, describes the deep-seated implications for Samoa of alienation of lands under customary tenure, beyond the anticipated direct socio-economic impacts for communities. Professor Iati explains that: ...the repercussions will extend beyond being a land ownership issue. Instead, it will have very significant implications for the traditional Samoan political framework. This comprises the customary socio-political practices and institutions that Samoans believe were in place prior to contact with Europeans, and which have been incorporated into their contemporary political framework on this basis. The traditional political framework applies primarily to the local governance sphere of the nu‘u (polity), which is made up of āiga (extended families) whose origins and/or roots have been intertwined into the fa‘alupega (constitution) of a nu‘u. During pre- contact times, nu‘u were autonomous political entities, and despite the formation of a national political domain in 1962, which introduced a national government, many still operate as if their autonomy and independence remains unchanged (Iati 2007). Land forms the foundation of this framework; it is attached to suafa (titles), which are owned and controlled by āiga and nu‘u. Āiga and nu‘u bestow these on individuals who they elect to be their matai, and the suafa gives the matai the authority to govern the lands associated with the suafa. If land is separated from suafa, then the āiga and nu‘u lose control over these lands, because their ownership is based on their control of suafa. Consequently, their authority in the political arrangement pertinent to this governance sphere is undermined.

18. Professor Iati concludes that without this authority, “the role and existence of the nu‘u and āiga as pillars of governance in Samoa will rest on precarious foundations.”

19. We regretfully note that the superficial and depoliticized analysis contained in the ADB project documentation fails completely to grasp these socio-political dimensions and risks of the reforms. The passage (above) from the Phase III TA report expresses a clear intention to not only have land registered under the name of an individual, but for the legal system to empower the individual to unilaterally lease tracts of land, without limits to size or duration. Pursuant to the Land Titles Registration Act of 2008, leaseholds over customary lands are to be registered in much the same way as ownership rights. Despite ADB’s attempts to differentiate this set of legal processes from those that would facilitate alienation of customary land through outright sale, we are convinced that the effect is one and the same.

20. The current TA’s objective of facilitating access to credit through the use of customary land leases as collateral - by establishing a precedent transaction between a foreign investor and a foreign Bank and establishing a framework to facilitate repossessing and reselling the lease in the event of default - serves to exacerbate the social, economic, cultural and political risks of the reforms to date. As one measure of the risks involved, we point to the high rates of default on loans by indigenous Samoans: The ADB reported that 46 percent of loans in its small business loan guarantee scheme were in arrears or foreclosed by completion of the project, and in the nine months after the project was completed the number of loans in arrears had increased by 50 percent.21 If defaults occur, foreign banks that own the debt can seize decades-long leases over large tracts of customary land. This is not the path to economic and financial development of Samoa that we elect to take. Instead, this is the path to alienation; deprivation and marginalisation that is reflective of the experience of the Hawai’ian people, Tahitians and the Kanaks of New Caledonia.