Ads by Google Ads by Google

Senate bill would see Samoan Affairs play bigger role in communal land mediation and matai titles

Manu’a District Governor Misaalefua J. Hudson (left) and Western District Governor Fai’ivae A. Godinet

Pago Pago, AMERICAN SAMOA — The Senate Samoan Affairs Committee conducted a hearing on Tuesday to discuss a proposed Senate bill, which would “allow for mediation of communal lands and matai titles cases to be referred to the Office of Samoan Affairs.”

District governors for Manu’a and the Western Districts, Misaalefua J. Hudson and Faiivae A. Godinet testified to impart their opinions on the bill.

Committee Chairman Senator Muagututi’a M. Tauoa began the hearing by giving the floor to Senator Togiola T.A. Tulafono who introduced the proposed bill, to explain in detail, the origins and purpose of the law as stated in Chapter 3 of Title 43 and Section 43.0302 of the American Samoa Code Annotated, and the reason behind the proposed amendments.

According to Togiola, this legislation was created by the Senate during the early days of the Territorial government, when the Chief Justice and Assistant Judges were appointed by the Department of the Interior, and all the appointees were non-Samoans.

In those early days, the Fono felt that the American judges who presided in the Judicial branch of government in those days, did not have a full understanding of matters pertaining to land and title issues, to ensure that decisions made to resolve differences, were fair and were done according to the appropriate cultural perspective.

Therefore, the Office of Samoan Affairs must play a part in the discussion of grievances with all sides involved with the aim of resolving the differences so that the matter would not have to go to court.

Otherwise, if no compromise is reached the matter would be referred to the High Court where a decision will be made.

So an Act was passed stipulating that all grievances submitted to the registrar pertaining to customary lands and matai titles, must be referred to the Secretary of Samoan Affairs who will be in charge of deliberations between the sides involved and act as a moderator in mediations, so that a compromise could be reached and the matter would not end up in court.

He emphasized that lands and titles are the “measina” or “treasures” of the Samoan culture which are handed down through the generations of the “aiga,” which is the family unit of Samoan society.

The proposed bill’s Preamble states that “the Samoan culture is deeply woven into the fabric of the lands and seas, reflecting the intimate relationship between the culture and the environment.

“This interconnection fosters a profound sense of belonging and a shared narrative, illustrating how the Samoan culture is not merely a product of human creation but also an organic expression intertwined with the geography and ecosystems that surround us.

The Preamble goes on to declare that, “there must exist a delicate balance between culture and the law. While legal frameworks provide a structure for our society, our culture forms the moral and ethical foundation of our community.

“The initial laws concerning lands and titles were formulated and approved during a time when we did not have any formally trained Samoan judges.

“It was during a time when we had more American professionals who created a system by which the Office of Samoan Affairs could operate and oversee the land and titles process.”

Senator Togiola revealed that it was at this time that a judge from Hawaii introduced an amendment to the existing Act which would prevent the High Court from holding hearings and making a decisions in lands or titles cases without a review by the Office of Samoan Affairs.

“This belief was supported by the Fono at the time who strongly believed that these issues were better addressed within the Office of Samoan Affairs,” the bill’s Preamble stated.

Togiola stated that before this Act, the sides who were involved in lands and titles disputes discussed their views with the Office of Samoan Affairs and whether or not a compromise is reached, the matter was referred to the High Court where a decision would be made.

With the new law in place however, the High Court was prevented from conducting hearings in cases pertaining to lands and titles disputes, without the cases being discussed and reviewed first by the Office of Samoan Affairs.

Senator Togiola pointed out that the legislation which was introduced to assist in resolving lands and titles issues, has created the problem of a significant backlog of cases at the Office of Samoan Affairs dating back to the last ten years.

“To alleviate this backlog, it is necessary to amend the law to properly reflect what is happening within our culture. Land and titles laws must complement our culture.

“These amendments aim to guarantee that our land and title laws and our cultural values are in harmony and balance with each other,” the proposed bill’s Preamble concluded.

He reasoned that these amendments would do away with the legislation which prevents the High Court from acting on any case without a Certificate of irreconcilable dispute from the Office of Samoan Affairs.

So if a complaint is filed at the Registrar’s Office, it is referred straight to the High Court after 60 days and not to the Office of Samoan Affairs.

However, if during the course of controversy before the High Court, the parties to such action shall all agree to refer their dispute to the Office of Samoan Affairs for mediation, the Court shall order all proceedings before the High Court suspended and the matter referred to the Secretary of Samoan Affairs or his designee, for mediation with instructions in accordance with this section.

Upon referral of the matter to the Secretary of Samoan Affairs by the High Court, the Secretary shall have 180 days to file with the High Court, the Secretary shall hold at least three meetings between himself and the parties in any matter referred to his office and he shall personally preside over each meeting.

If the parties involved in the matter reach a compromise in the course of the mediation process, they must put this mutual agreement in writing to be certified by the Secretary and submitted to the High Court.

Whatever the settlement agreement states, the High Court cannot reverse or change but must endorse it as the final decision of the matter.

On the other hand, if the original settlement agreement signed by all principal parties and their respective counsels and certified by the Secretary; or a writing informing the High Court that the parties were not able to reach an agreement and they agreed to return to the High Court for a final adjudication and disposition of their dispute.

No further referral to the Secretary shall be granted thereafter and the final decision cannot be appealed.

In his comments regarding the proposed amendments to the bill, Western District Governor Fai’ivae A. Godinet pointed out that the Office of Samoan Affairs has played a big part in resolving lands and titles disputes among families over the years.

He said that he has witnessed many disputes resolved in the cultural way of mutual respect and despite their differences, different sides within extended families have reconciled.

However, with the proposed amendments to the law, families will take their disputes directly to the court (unless they opt to discuss it first at the Office of Samoan Affairs), and he expressed his concern that some families will have to come up with funds to pay for a lawyer to represent them.

He admitted that there is a significant backlog of cases at the Office of Samoan Affairs but he also pointed out that the same thing exists at the High Court.

However, Fai’ivae stated that at the end of the day, the passage of the proposed bill will be up to the Senate and that he would support whatever decision they make.

Senator Soliai T. Fuimaono revealed that a new bill to solve this matter was already in the making which would refer all lands and titles disputes to the Office of Samoan Affairs and would be heard by a four-member council consisting of the three district governors and the secretary which will be assisted by a legal counsel.

Each party involved in the dispute will have a representative who will testify on their behalf and the council will make a decision after review and consultations.

If the parties do not agree, the matter will then be referred to the High Court where the decision will be further reviewed and a final decision will be made.

Soliai explained that this is essentially what is entailed in the new legislation currently being put together and he will have a more detailed explanation of the new bill once it is completed.

He also stated that the part of the new bill is a proposal to establish a Lands and Titles Court similar to that in Samoa.

Manu’a District Governor Misaalefua J. Hudson spoke in support of the proposed bill saying that lands and titles disputes have created divisions in families, and he has witnessed instances where members from opposing sides refuse to sit together or talk to each other during the mediation sessions.

However, afterwards when they reach an agreement, it was heartwarming to see them greeting each other and shedding tears of reconciliation.

Senate President Tuaolo Manaia Fruean spoke on the matter saying whenever deliberations involve customary lands and matai titles, we are talking about our heritage.

He recalled his tenure as a Samoan judge when a lands and titles case was scheduled to be heard at the High Court, the Chief Justice would always advise the parties concerned that the decision made by a family would be the most fair, just and equitable decision because a consensus is reached, but a verdict delivered in court would always have a losing side.

The bill was passed in the second reading during the Senate regular session after the hearing on Tuesday.