Return to Property Corner

Customary Land Legislation

17.9  Customary land cannot be alienated:  that is prohibited by the Constitution.  But the Constitution contemplates statutory provision for leases or licences of customary land, and the Alienation of Customary Land Act 1965 has been enacted to enable certain leases or licences over customary land to be granted.  Leases of customary land are granted by the Minister of Lands as trustee for the owners of the land, and are administered by the Department of Lands, Surveys and Environment.  The Minister must be satisfied that granting the lease is “in accordance with Samoan custom and usage, the desires and interests of the beneficial owners of the land or interest therein, and the public interest.”  The Minister must also be satisfied that the lease is:

1.1.1           for an authorised purpose approved by the Minister (including a public, hotel, industrial, commercial, business or religious purpose);

1.1.2           for a term not exceeding 30 years, which may include a right of renewal for a term or terms not exceeding an additional 30 years in aggregate, if the authorised purpose is a hotel or industrial purpose;

1.1.3           for a term of up to 20 years, which may provide for a right of renewal for a term or terms not exceeding an additional 20 years in aggregate, if the authorised purpose is not a hotel or industrial purpose.

1.2        The Act makes detailed provision for applications to be made to grant a lease or licence, and for ascertaining the identity of the beneficial owners of the land, and their wishes in relation to its use.  Rent is paid to the Director of Lands in trust for the beneficial owners.

1.3        The process of obtaining a lease or licence over customary land is very drawn out, and commonly takes in excess of 12 months.     

1.5        A period of not less than 3 months is built into the Act, in most cases, given the objection process contemplated by section 8, under which the application’s particulars are published in the Savali and any beneficial owner has 3 months to make a written objection to the proposal.  (This step is not required in certain circumstances, in particular if the person making the application has been held to be the beneficial owner of the customary land or interest in respect of which the application is made).  However delays of 12 months or more appear excessive.  Some of this may be due to difficulties in publishing notices in the Savali, which is notoriously infrequent in its appearance (and inaccessible to the general public, to whom notice has in theory been given). 

There is one provision of the Act which is somewhat curious, and likely to stifle efficient use of customary land without any apparent countervailing social or cultural objective.  That provision is section 3, which provides:

“It shall not be lawful to lease or licence any customary land for any agricultural or pastoral purpose to any Samoan who is not for the time being holder of a Matai title.”

17.1This provision would, to the extent that it is effective, prevent untitled Samoans – but not foreigners, or companies – from obtaining a lease of customary land for agricultural or pastoral purposes.  Thus one very likely class of potential developer of customary land for agricultural/pastoral purposes is excluded from doing so. 

Mortgages of leases of customary land

17.1There appears to be considerable uncertainty in relation to whether or not it is possible to grant a valid mortgage over a lease of customary land.  Article 102 of the Constitution prohibits the creation of security interests over customary land or any interest in customary land.  The issue is whether a lease of customary land is an interest in customary land in respect of which security cannot be granted or taken, or whether the lease itself is a distinct asset which is not within the scope of the phrase “interest in customary land”, and which can be the subject of a security interest.

1.10    It seems to us that because the security holder in respect of a lease can never obtain more extensive rights than the original lessee, there can be little objection to allowing security to be taken over the lease.  This should provide a very important mechanism for facilitating borrowing to develop customary land which has been leased in accordance with the Alienation of Customary Land Act.  (The mortgage would also of course extend to any buildings on the land, for the term of the lease.)

1.11