Proposed legislation dealing with the alienation of land passes the Senate
Pago Pago, AMERICAN SAMOA — The newly-appointed Secretary of the Office of Samoan Affairs, Fai'ivae Iuli A. Godinet, testified at the Senate Samoan Affairs Committee hearing on the Property- Alienation of Land bill on Tuesday.
Fai'ivae informed the senators that he had thoroughly examined the proposed bill and fully supports its intention. He emphasized that the bill's passage would ensure the protection of our communal lands and culture for future generations. Furthermore, he highlighted that it would aid the Office of Samoan Affairs in resolving many longstanding land disputes of this nature.
Initially introduced by Senator Togiola T.A. Tulafono towards the end of the previous Legislature, the bill prohibits the transfer of communal land to individually-owned land. Additionally, this bill will also prohibit any individual who clears uncultivated land from registering such land as their own.
The Senate approved the bill in its final reading in September 2024. However, since the proposed legislation deals with the alienation of land, it must be passed by a 2/3 vote of the entire membership of both the House and Senate in two successive legislatures and signed by the Governor.
Hence, the bill was reintroduced on January 16, 2025, just before the Fono went into their one-week recess.
During the hearing Tuesday chaired by committee Vice Chairman Leatualevao S. Asifoa, Senator Togiola explained that the proposed bill consists of two amendments to the Territory's existing land laws — added in response to surfaced disputes.
He stated that currently, the Sa'o or matai head of an extended family can convert communal land to individually-owned land and transfer ownership to an individual with blood ties to the family, by surveying the land before referring the matter to the Land Commission.
If the Land Commission approves and recommends the transaction, the papers are then signed by the Governor, making it official.
In his testimony, Samoan Affairs Secretary Fai'ivae highlighted the inevitable problems and tensions between family members and the individual, and his descendants, to whom the land has been transferred as ‘freehold’ land.
He explained that an individual might argue that the communal land they now own is freehold land, and therefore they are not obligated to provide donations to family fa'alavelave. Fai'ivae presented another scenario where the Sa'o who converted the land from communal to freehold passes away and is replaced by a new Sa'o.
"The new Sa'o can argue that the entire extended family was unaware that the family land had been converted to individually-owned land and that the deceased Sa'o had no right to convert it without the extended family's consent," Fai'ivae stated.
Senate President Tuaolo Manaia Fruean echoed Fai'ivae's sentiments and recalled a similar situation from his time as an associate judge in the Lands and Titles Division of the High Court.
He recounted that a family Sa'o in Lauli'i had converted communal land and transferred ownership to a cousin. Matters escalated when the extended family took the issue to court, arguing that they had no knowledge of what had happened to their family land.
Tuaolo mentioned that the extended family unfortunately lost the case because the court ruled that the defendant had satisfied all the legal requirements, including surveying the land in question, obtaining the Land Commission's approval and the Governor's signature.
He mentioned that at the time he informed Chief Justice Rees that he respected his decision, acknowledging that all the legal requirements had been followed; however, he rejected the decision in his role as a Samoan matai. He argued that if the family Sa'o gives away family communal lands, where will the future generations of the family live, and how would they carry out their service or tautua without land?
The other amendment prohibits any persons or entities from registering uncultivated, virgin bush or forest land as their own after clearing it.
He explained that the issue was first brought to the Senate's attention due to public outrage over media reports about individuals who cleared virgin bush and attempted to register it as individually owned land.
The Sua senator referred to an incident in 2022 where four prominent community members cleared and surveyed nearly 400 acres of communal and forest land in the mountain range behind the villages of Malaeimi, Fagasa, and Aasu.
They named the land "Nu'u Fou" and submitted it to be registered as individually owned land at the Territorial Registrar's Office. This debacle is addressed in the bill.
Togiola said this issue prompted an investigation by the Senate Select Investigative Committee (SSIC) which recommended the establishment of a law to protect village land.
"Many villages on Tutuila have limited flat land, and natural surroundings are used as village boundaries, such as from the reef to the mountain tops," Togiola explained. "Anyone in the village who wants to clear land on the mountain behind or surrounding the village to plant crops to feed their family and serve their Sa'o only needs to seek permission from the village council of chiefs.
"But for someone to clear and plant crops on this land, then claim it as their own because it was virgin bush, will face the ire of the village chiefs and untitled men. This is why the passage of this bill is very important, as it ensures the preservation of our lands and culture for future generations."
Senate President Tuaolo Manaia Fruean shared that the village council of chiefs from his village of Pago Pago were having to'ana'i one Sunday when a matai commented on a cleared piece of land on the mountain range surrounding the village.
He was informed that someone with family ties to Pago Pago but residing in Tafuna had cleared the land and was claiming it as his own. Tuaolo said the village chiefs pursued the matter and banned the man from the cleared land.
According to the Preamble of the proposed bill, "the communal land system is deeply intertwined with both the kinship system (family/aiga) and village organization. It is through the stewardship of the communal land system that has enabled those who live on that land to share their lineage and serve others.
“Our bonds to our lands, created through blood, sweat and tears, define us as a people and culture. It is our communal lands that carry our beliefs, our values, our culture, our traditions. It defines who we are and plays an important role in perpetuating our culture and traditions.”
When the proposed bill was first introduced in the Senate last year, a question was raised about whether communal land that had already been converted to individually owned land would be affected by the new legislation. Senator Togiola clarified that the bill would not be retroactive.
Togiola further explained that the bill does not affect any leases or lease agreements the family Sa'o may want to secure on behalf of the extended family.
During yesterday's regular session, the Senate unanimously passed the bill in its third and final reading. It now awaits passage by the House of Representatives before being submitted to the Governor to be signed into law.
BACKGROUND
Not discussed during the hearing was the effect the amendment that prohibits the transfer of communal land to individually-owned land will have on the ability of a person or individual to get a house loan or mortgage.
Banks or lending institutions as a rule ask for collateral — a physical asset — which is usually not only house that will be built but also the land it will be built on to back up a promise to repay them. This way if you default on your loan/ mortgage the lender can recoup the loss by seizing the asset, i.e. the house and the land it sits on.
This type of loan is also known as a secured loan — the collateral "secures" financing.
The problem lies in the fact that lenders usually when seizing the asset look to resell it to recoup their money. What if the family that owns the communal land the house sits on refuses to allow the new owner(s) to live on their land? Would the house then have to be physically moved to a new location?