Samoa Observer

A group of matai (chiefs) who care deeply about the future of Samoa in terms of maintaining ownership of customary land has stepped up to challenge the all-powerful Asian Development Bank (ADB).

The group, spearheaded by Lilomaiava Ken Lameta, of Vaimoso and Safotu, has filed a letter of complaint against the ADB over a project they say “could alienate 80 per cent of all land in Samoa.”

Other group members include Teleiai Dr. Sapa Saifaleupolu, of Samatau, Fiu Mataese Elisara, of Sili Savai’i and Leulua’iali’i Tasi Malifa, of Afega.

In a letter to ADB dated 19 December 2013, the four men filed a complaint under policies that are supposed to protect “indigenous” people affected by bank projects.

A copy of the letter has been obtained by the Sunday Samoan.

It reads: “This Firm, together with the gentlemen whose names and signatures appear below, wish to submit this letter by way of our complaint of the Asian Development Bank’s (ADB) work with the Government of Samoa, in alienating Samoan customary lands to be readily available as collateral security for loan mortgage transactions.”

In the complaint, the group points to a 30 per cent default rate on the bank’s own microfinance programme in Samoa – nearly one in three loans.

This is clear evidence, they say, of what could happen if the bank and government build on Phase I and Phase II of the customary land project, and continue to Phase III.

“At this juncture of the ADB and Samoan Government Phase III Project, we wish to give notice that we will galvanize all support to take this matter through all avenues available, including of course, those of litigation in the Courts of law,” the letter reads.

The official complaint against ADB comes despite assurances from the Government in October that there is “no threat to the ownership of customary land.”

The Assurance was issued by Attorney General Aumua Ming Leung Wai. It followed a letter from Prime Minister Tuilaepa Sa’ilele Malielegaoi to commercial banks in Samoa that any views other than that of the Attorney General over the issue of customary land were “rubbish”.

However, concerns remain that, while ownership of lands may be protected, access to customary land may be lost through leases for loans that cannot be paid back.

In its letter of complaint, the group of matai states that their research shows A.D.B. and the government of Samoa began their customary land project some 15 years ago, ending in a number of laws, including the Land Titles Registration Act 2008, and the Customary Land Advisory Commission Act 2013.

“We are concerned that the ongoing funding by ADB to help our government implement its intention to allow use of our customary lands as collateral for economic development is tantamount to ultimately alienation of our customary lands, and thereby lead to violation of the rights of our Samoan people here and overseas.”

Under the complaint, the writers call on the A.D.B. to halt the land project.

They say the bank should take into consideration the fact that policies designed to protect indigenous minorities also apply to countries that have indigenous majorities, such as Samoa.

“We ask that ADB refrain from continuing with this project,” reads the complaint.

“These land tenure 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.”

“This is reflected in polls, which have been conducted by New Zealand based political scientists and the local newspaper.”

As well as A.D.B. policies protecting indigenous rights, Samoa is also signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ILO 169, and other international human rights treaties,” reads the complaint.

“Customary  land is not merely untapped collateral.

“Rather, it sits at the heart of the fa’aSamoa — of the Samoan political and electoral mainstream, as well as its cultural core and family life. Accordingly, customary land rights are entrenched and securely enshrined in the Constitution.”

Signatories of the complaint believe that ADB is “not complying with its own policies in respect thereof; it is not abiding with its own compliance mechanisms and or its engagement requirements, and it is not even following its own operational regulations.”

They state that “We know that the ADB is required to pay special attention to projects, which are expected to displace ‘indigenous peoples’, and we can be certain that in the pivotal issue of mortgages by way of this new security of customary lands for ‘higher economic use’ as ADB is promoting in this Samoan project, it has not done that.

“It has not paid ‘special attention’ to the dire needs of the Samoan people as shall be affected — in fact displaced — by this project.”

Instead, the bank has “merely” provided “all aid and monies” as requested by the government of Samoa.

According to Fiu Mataese, they have “received an acknowledgement from ADB that they have received our letter and promised to give us an ADB response when they start work in January 2014.”

Meanwhile, the letter is published here in full:

19 December 2013

Malie Lotolelei
Pacific Subregional Office (SPSO)
5th Floor Ra Marama Building 91 Gordon Street, Suva, Fiji mlototele@adb.org

Lodging a complaint on ongoing ADB efforts to allow mortgages on security of customary lands in Samoa

This Firm, together with the gentlemen whose names and signatures appear below, wish to submit this letter by way of our complaint of the Asian Development Bank’s (ADB) work with the Government of Samoa, in alienating Samoan customary lands to be readily available as collateral security for loan mortgage transactions.

Research we have undertaken shows ADB and the Government of Samoa began this process some 15 years ago, culminating in the passage into law of a number of statutes specifically for that purpose, including the Land Titles Registration Act 2008, and the Customary Land Advisory Commission Act 2013.

Of course, not only were these statutes written by ADB consultants — which obviously meant the laws were not as the people want and need, but as ADB demands — but also that the consultants themselves were paid for with ADB grant money.

Underlying this project and what these laws permit, is the creation of a land titles registry, by way of “legislative amendments as necessary" to “free up customary land for commercial activities in a designated area or areas.... and to undertake a comprehensive review of the law pertaining to land, including but not necessarily limited to the various legal impediments preventing the movement of land, particularly customary land, to higher economic uses.”

In other words, these laws are to provide for economic use of customary lands. Immediately, this simple question comes to mind: is it critically necessary to change Samoan cultural ownership of land, simply to make money, or, as in the words above, to achieve “higher economic uses”, whatever that is?

Samoans are an indigenous original people in our own right; and as Samoa is a signatory to both the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ILO 169, and other International Human Rights Instruments, we are concerned that the ongoing funding by ADB to help our government implement its intention to allow use of our customary lands as collateral for economic development is tantamount to ultimately alienation of our customary lands, and thereby lead to violation of the rights of our Samoan people here and overseas.

Customary land is not merely untapped collateral. Rather, it sits at the heart of the fa’aSamoa — of the Samoan political and electoral mainstream, as well as its cultural core and family life. Accordingly, customary land rights are entrenched and securely enshrined in the Constitution.

We request therefore that Projects 41173-012: Promoting Economic Use of Customary Land, Phase II, and 46512-001: Promoting Economic Use of Customary Land, Phase III, take into consideration that Samoans are an Indigenous People and that this project has a Category A impact.

These land tenure 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. 

This is reflected in polls which have been conducted by New Zealand based political scientists and the local newspaper.

In our view, the outcomes of this ADB partnership with our government, with Phase II completed and going into Phase III, shall ultimately result in the resettlement of our people, who, of course, own about 80% of all land.

And these being cultural and customary lands, which under these new laws shall be readily available as loan security, these lands shall immediately become ‘indebted’ to investor interests both foreign and national, and thus, be taken over by commercial banks when default happens.

Ultimately, the interest in the lands are alienated and taken away from the people, contrary to and much against the spirit and intent by which our forefathers as Framers of our Constitution ordained and desired those to be.

We ask that ADB refrain from continuing with this project. We believe ADB is not complying with its own policies in respect thereof; it is not abiding with its own compliance mechanisms and or its engagement requirements, and it is not even following its own operational regulations.

We know that the ADB is required to pay special attention to projects which are expected to displace ‘indigenous peoples’, and we can be certain that in the pivotal issue of mortgages by way of this new security of customary lands for ‘higher economic use’ as ADB is promoting in this Samoan project, it has not done that.

It has not paid ‘special attention’ to the dire needs of the Samoan people as shall be affected — in fact displaced — by this project. Instead, it has merely provided all aid and monies as the Samoan Government requests and requested, and in the process requires the Samoan Government to do as it wants.

The threshold for triggering the ADB’s Involuntary Resettlement safeguards is that 200 people will be displaced or stand to lose 10% of their productive or income generating assets. The ADB’s land tenure reform projects cross this threshold.

The ADB is aiming to increase borrowing to 50% of GDP by promoting collateral based lending and reducing the risk of foreign investors.

But the projects do nothing to lower the default rate of indigenous borrowers whose land is at stake, and who have historically had extremely high default rates. For example, a recent ADB microloan project had a 30% severe delinquency rate.

So, the ADB knows and has projected a high default rate by Samoan customary land borrowers. The ADB has attempted to estimate a very high percentage of Samoans — noting of course that customary lands is about 80% of all lands - who will take this ‘higher use’ of customary land to borrow on, and of course, fail to pay back the Banks and the loan institutions. It follows that by these new laws, the lands — customary lands — shall be alienated/taken by the Banks, and the people become displaced and dispossessed thereof.

Is this ADB’s special attention to indigenous Samoans — displacement?

We also know that ADB is obliged by its own procedures to evaluate this risk more closely, particularly in a country without strong borrower education programs or predatory lending laws. One step in Project 46512-001 is to create a system whereby leases against customary land may be registered in the Torrens Land Title Registry. The registry of any interest in customary lands under any individual’s name in the Torrens Land Title Registry directly threatens our interests as stewards of customary land.

We request that the ADB refrain from drafting further laws or creating institutions in support of this action, and from any test cases of this action.

At this juncture of the ADB and Samoan Government Phase III Project, we wish to give notice that we will galvanize all support to take this matter through all avenues available, including of course, those of litigation in the Courts of law.

Meanwhile, we ask that ADB through you as its representatives with responsibilities in Samoa and the Pacific, to ensure that ADB is complying with its own policies in this important matter.

Needless to say, sustainable development demands equal and balanced treatment of all in its four pillars of economic growth, social equity, cultural integrity, and cultural protection and enhanced diversity.

Further, we ask ADB to engage in evaluating the real risks of foreclosures that will be inevitable as an outcome of its project if it proceeds, to ensure compliance with its policy of genuine public engagement, consultation and discussion. In this way, Civil Society Organisations (CSO) shall be ensured of adequate funding support in transparency, and thereby assist us all in our role and responsibility to advocate our concerns about this ADB/Samoa government partnership.

Sincerely,  

Lilomaiva Ken Lameta — matai of the villages of Vaimoso, Upolu and Safotu, Savaii/Veterinary Doctor/Chairman of the Board of Directors for Ole Siosiomaga Society Incorporated Dr. Telaiai Sapa Saifaleupolu — matai of the village of Samatau, Upolu/consultant Fiu Mata’ese Elisara — matai of the village of Sili, Savaii/Executive Director of Ole Siosiomaga Society  Leuluaiali’i Tasi Malifa — matai of the village of Afega/lawyer/Libra Law

cc:
Adrien Ruthenberg — Regional Director aruthenberg@adb.org Xianbin Yao — Pacific Regional Director/ADB. xyao@adb.org Stephen Groff - Vice President of ADB/Pacific Area sgroff@adb.org