Fetuunai Muniao Lipoti O Suesuega Galuega Faatino 2

1 FETUUNAI MUNIAO LIPOTI O SUESUEGA GALUEGA FAATINO 2 TO: “Ia iloilo ma suesue Tulafono a Samoa, pe faapefea ona tutoatasi le Faamasinoga o Fanua ma Suafa mai Faamasinoga o Soligatulafono, e aunoa ma le aafia ai o mataupu o le Faavae.” 1 © Samoa Law Reform Commission 2 Table of Contents BACKGROUND ......................................................................................................................................... 3 1. PART 1: AUTONOMOUS LAND AND TITLES COURT ................................................................... 4 2. PART 2: HISTORY OF THE LAND AND TITLES COURT (1889- 2019) ........................................ 4 3. PART 3: ANALYSIS OF THE 1975 COMMISSION OF INQUIRY REPORT ON THE LAND AND TITLES COURT ....................................................................................................................... 9 4. PART 4: COMPARATIVE ANALYSIS - LAND & TITLES PROTECTION ORDINANCE 1934 AND LAND & TITLES ACT 1981 .................................................................................................. 11 5. PART 5: SUPREME COURT AND COURT OF APPEAL LTC CASE LAW ANALYSIS .................... 12 6. PART 6: 57 YEARS OF 23 CONSTITUTIONAL AMENDMENTS .................................................. 18 7. PART 7: SIMILAR SPECIAL COURTS IN OTHER JURISDICTIONS .............................................. 19 8. PART 8 - INTERVIEW WITH SOME MEMBERS OF THE JUDICIARY.......................................... 26 9. APPENDICES ................................................................................................................................. 29 Appendix A (1) - Similarities between the LT Ordinance 1934 LT Act 1981 ......................... 29 Appendix A (2) – Differences between the LT Ordinance 1934 LT Act 1981 ........................ 33 Appendix B – General: SC and LTC Case Review ....................................................................... 36 Appendix C – SC & COA Judicial Review of LTC Decisions ....................................................... 43 Appendix D – Non-Judicial Review cases .................................................................................. 60 Appendix E - Special Courts of Other Jurisdictions considered ............................................... 84 LIST OF REFERENCES ............................................................................................................................ 89 2 © Samoa Law Reform Commission 3 BACKGROUND By Cabinet Directive FK (19)31 of 20 September 2019 the Ministry of Justice and Courts Administration, the Office of the Attorney General and the Samoa Law Reform Commission were tasked to research and recommend on the following Terms of Reference. Terms of Reference 1 To review and research the laws of Samoa on how customs and usages can be recognised and protected under the Constitution, within the ambits of the Constitution; Terms of Reference 2 To review and research the laws of Samoa on how the LTC can be an independent set up from the formal courts, within the ambits of the Constitution; and Terms of Reference 3 To make recommendations. Following approval by the Hon Prime Minister and the Minister of MJCA on 11 October 2019 of the above TOR, the Samoa Law Reform Commission (SLRC) carried out research to inform the recommendations for this Project. Similar to Terms of Reference 1, it is important that this very crucial task for Samoa is recorded in its making, and thus the Fetuunai Muniao Committee (SLRC, AGO, MJCA) has put together this Report, taken from the research of the Samoa Law Reform Commission. This Report responds to Terms of Reference 2 - To review and research the laws of Samoa on how the LTC can be an independent set up from the formal courts, within the ambits of the Constitution. 3 © Samoa Law Reform Commission 4 1. PART 1: AUTONOMOUS LAND AND TITLES COURT Introduction 1.1 One of the complexities of legal pluralism is defining how its customary land and title court matters are dealt with in Samoa’s Court System. Although Samoa has a specialized Land and Titles Court with exclusive jurisdiction to hear customary matters, there remains the challenge of finding common ground when there are contradictions between customary law and western law. 1.2 With Terms of Reference 2, Government’s goal can be viewed as – ‘for Samoa’s Land and Titles Court to be autonomous and separate from the formal/western courts, to be able to decide on customary land and title matters without or, with little interference’. 1.3 This is not a new nor an uncommon goal of Government, in fact, research shows that this was the original intention behind the set-up of the Land Commission which later became the Land and Titles Court. (The following Parts of this Report will further discuss these). 2. PART 2: HISTORY OF THE LAND AND TITLES COURT (1889- 2019) Summary History informs that the Land and Titles Court was always intended to be an autonomous setup; a unique court with specialist jurisdiction to determine disputes on customary land and customary titles in Samoa. 2.1 At the opening of the additional Land and Titles Court at Savaii in 1970, former Prime Minister Tupua Tamasese Lealofi IV said of the criminal courts and the Land and Titles Court:1 “The respective roles and functions of the two courts are different. One is for the maintenance of law and order, the other is for the protection of rights to customary lands and titles- the two basic and fundamental things which form the very core of our Samoan society. The decision of the Criminal Courts ill affect only those accused, whereas the decisions of the Land and Titles Court have far reaching effect for they are binding even on the unborn generations.” 1 Epati A S; Lawyers and Customary Law Court, Pacific Courts and Legal Systems, IPS USP Fiji, 1988, Chapter 28. 4 © Samoa Law Reform Commission 5 1.2 The Land and Titles Court (as currently known) survived 3 administration - the German, New Zealand and Independent Samoan.2 It has also maintained its general aim and objective of resolving disputes regarding customary lands and titles. The Constitution 1960 continues the Land and Titles Court and its jurisdiction over customary lands and titles cases is stipulated in the Land and Titles Act 1981. HISTORY OF THE LAND AND TITLES COURT (1889 – 2019) (Fanaafi Aiono- Le Tagaloa, The Land and Titles Court of Samoa 1903-2008 (Continuity amid Change), A Thesis submitted for the degree of Doctor of Philosophy in Law at the University of Otago, Dunedin, New Zealand, August 2009.) Epati A S; Lawyers and Customary Law Court, in Powles G and Pulea M (eds), in Pacific Courts and Legal Systems, IPS USP Fiji, 1988 167 - 170 . 1889 Tri-Partite (German, Britain and USA) Land Commission 1889 (Berlin Act 1889) - Fore runner of the Land and Titles Court. TRIPARTITE (GERMAN, It consisted of 3 competent and impartial persons, one named by BRITAIN & USA) each of the Big 3, assisted by Natives Advocate (2 years to investigate and report to the Supreme Court of Justice) 1903 Land and Titles Commission established under German administration. GERMAN It was to adjudicate native disputes over native titles and lands. It comprised of an Imperial District Court Judge (as Chair) and 2 assessors appointed by the Imperial Governor. 1934 Enactment of the ‘Native Land and Titles Protection Ordinance 1934’ NEW ZEALAND This Ordinance established the ‘Native Land and Titles Commission’ 1937 The name ‘Native Land and Titles Commission’ was changed to ‘Native Land and Titles Court’ Commission changed to a Court under NZ Administration 1951 Name changed again to ‘Samoan Land and Titles Court’.3 1960 Constitution of Samoa 1960 1962 Independence Day of Samoa 1970 Additional Land and Titles Court established in Savaii 1981 – to date Enactment of the Land and Titles Act 1981 (repealed the Samoan Land and Titles Protection Ordinance 1934) 2 Fanaafi Aiono- Le Tagaloa, The Land and Titles Court of Samoa 1903-2008 (Continuity amid Change), A Thesis submitted for the degree of Doctor of Philosophy in Law at the University of Otago, Dunedin, New Zealand, August 2009. 3 Legislative Amendment in 1951 altered the term ‘native’ to Samoan’ in all New Zealand legislation. (Samoa Amendment Act 1951 (NZ), s.2). 5 © Samoa Law Reform Commission 6 The above information is reproduced below in the form of a Flow Chart. FLOW CHART: HISTORY OF THE LAND AND TITLES COURT 1. TRI-PARTITE LAND COMMISSION 1889 (German, Britain and USA) Administration (1st colonial administration) of Samoa established a TRI-PARTITE LAND COMMISSION 1889 (Berlin Act) – FORE RUNNER OF LTC a) To consider land claims of any kind of land in Samoa b) Established to investigate and possibly validate the existing foreign purchases that had already been made c) Consisted of 3 competent and impartial persons one named by each of the Big 3, assisted by Natives Advocate (2 years to investigate and report to the Supreme Court. 2. GERMAN LAND COMMISSION 1903 pursuant to the 1903 Ordinance and Instructions a) Following the signing of the Treaty of Berlin 1899, the Control of Samoa was divided between Germany and USA (Western Samoa was under German administration) b) Land Commission established by the German administration to adjudicate native disputes over native title and lands c) It comprised of an Imperial District Court Judge (as Chair) and 2 assessors appointed by the Imperial Governor 3. NEW ZEALAND LAND COMMISSION pursuant to Samoa Native Land and Titles Commission Order 1920 a) It was initially the Native Land and Titles Commission

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