Loophole in Samoan law allows foreign investors to strip natives of their land, says lecturer

Written by: 
Kevin Brown

During his recent visit to BYU-Hawaii, Dr. Iati Iati of New Zealand’s University of Otago presented on issues with land ownership several Samoan families face with property their family has owned for generations. If not recognized and reversed, he said the nation of Samoa could end up as another Waikiki–plagued with hotels and urban development.  

More than 200 faculty, students, and community members, primarily of Samoan descent, made their way to the McKay Auditorium on Jan. 25 to hear him speak.

Iati talked about customary land, a type of land governed according to old Samoan traditions prior to colonization. The founding fathers of Samoa put such an emphasis on protecting customary lands that no other laws would supersede the protection. “The government never intended for customary lands to be bought or sold. If there’s so much protection for these lands and alienation isn’t allowed, then what has escaped the government? Leasing!”

He gave a scenario where if someone’s land in Samoa was registered fraudulently under another person’s name and they decided to lease it to a foreign investor, that foreign investor then has what’s called indefeasibility. “The government will not turn back the transaction. Once they do something with that title, they effectively exclude the real owner during the lease.”

Iati added, “The extended family holds at least one title. The title holder becomes what we call a matai, or a leader of the family. Every title in Samoa is attached to some estate or some customary land.”

Families in Samoa may fall victim to leasing their lands to foreign investors, said Iati. “What happens is that they think, ‘Oh, I am going to get so much money when the lease runs out, and I will acquire a hotel and all of this real estate.’ But what they don’t know is that they will be required to buy those properties from the investors when the lease runs out.”

Iati said it’s a million-dollar trap where families then can’t afford to buy the developments on their properties, so it remains in the hands of the foreign investors.  

Mamoe Sanerivi, the senior manager of Financial Aid and Scholarship who is also Samoan, stated, “They think the government might say something where they think it is correct, but on the other hand they do not realize they can lose their land too.

“The government argues that only when you sell is when you lose your land, but leasing says otherwise.”

Iati talked about the current system in place that allows this to happen, the Torrens System. “It originated from Australia and it has been adopted by a lot of Pacific Island nations.” It gives more protection for the purchaser because the purchaser “isn’t concerned” with whose name is officially on the title. “If it says ‘Joe,’ then they say, ‘Well, Joe is the true owner. I’m going to deal with Joe. I’ll take a lease with Joe.’ If the courts find out that Joe is not the true owner, they will say, ‘Joe, you are not the true owner, but we are going to make that transaction stand.’”

Rowena Reid, who teaches Samoan on campus, said her friend heard about the land disputes and moved back to Samoa to support her friends and family.

“She was there for five months trying to protest,” Reid said. “This whole thing is kind of disheartening when you think about Samoans over all. They are not educated by Western standards, but they are very knowledgeable about culture. The fact that it’s almost too late for them to do anything about it, it’s disappointing.”

Iati said the system in place before the Torrens System, the Deeds System, provided excellent protection for the title owner based on market instruments, but that system was replaced with the passing of the Lands and Titles Registration Act (LTRA) in 2008. He said that system also had its flaws.

After playing a video showing Samoan Prime Minister Tuilaeapa Aiono Sailele Malielegaoi talking about the Deeds System in Samoan, Iati summarized his words: “If someone came along with a superior title over yours and deposited a bigger instrument, then they were considered the official title holders.”

Iati said he started to do research on the issue when the system changed. “If you are familiar with other nations under the Torrens System, you will see the effects it has on those nations, especially those with indigenous peoples with land rights, like Samoa.”

One of the effects on Samoa is monetary bribery from foreign companies, according to Reid. “The money is always an enticement for poor countries, but you start to lose your land and your freedom.”

Speaking on the change in dynamics of Samoa, Reid said, “They’ve got the Japanese. They own the hotels. The Chinese run the businesses. They are slowly overtaking Samoa. And now with the [Torrens System], it’s almost too late for them.”

Despite the amnesty offered foreign investors, Sanerivi said more people are catching on to what is happening around them, and he credited people like Iati for that awareness.

“I like what people like him are doing. He is educating our people with things they do not understand. Samoa values exposure. They like to see someone with a bright future trying to educate our people on what is going on.”

Reid commented, “I think it’s all about education. I think the more people like this who branch out to people and tell them what is going on, the better. The whole thing is so complicated, and the average Samoan can’t understand all of these laws.”

Iati concluded his presentation by stating Samoans across the world possess the will to fight, as they strive to keep their culture and their customary lands. He said jokingly, “There are two things a Samoan will die for: His wife and his land.”

Date Published: 
Monday, February 12, 2018
Last Edited: 
Monday, February 12, 2018