CASE FILE | |
| Location: | Samoa |
| Project | The Asian Development Bank and the Government of Samoa |
| Project: | The ADB’s Technical Assistance for Promoting Economic Use of Customary Land project and Agribusiness Support project |
| Key concerns: |
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| Our partners: | A group of Samoan Matais and high chiefs |
| Outcomes: | The ADB’s Accountability Mechanism found evidence that the ADB’s actions violated its operational policies, and the process ultimately led the Samoan government to adopt two legislative reforms that safeguard customary land. |
Approximately 80 percent of land in Samoa is governed under customary systems that have been the foundation of Samoan civilization for thousands of years. These systems entail collective ownership by entire kinship groups, known as aiga.
Under a series of Technical Assistance projects called Promoting Economic Use of Customary Land, the Asian Development Bank (ADB) promoted land and financial sector reforms in Samoa in the early 2010s that would make it easier to lease customary land and to use those leases as collateral for loans. Under the reforms, a single authority figure could unilaterally lease out customary land, without consulting other members of the aiga, and then use the lease to access credit from a bank. In the event that the leaseholder defaulted on the loan—a likely scenario in Samoa, where loan default rates are very high—the bank could take control of the lease, potentially affecting large tracts of customary land for decades.
Recognizing that the ADB-backed reforms could lead to large-scale land alienation and dispossession, a group of village chiefs enlisted Inclusive Development International’s help in 2014 to file a complaint with the bank’s Accountability Mechanism. The complaint argued that the reforms had been carried out without meaningful consultation with the Samoan people and were incompatible with the Indigenous culture and political institutions of Samoa, noting that leasing land to outsiders for long durations, and then mortgaging those leases, came perilously close to land alienation, forbidden by customary laws and the Constitution of Samoa.
Dr. Telei’ai Sapa Saifaleupolu, matai of Samatau and Upolu, said at the time: “Our customary systems of consensus building may be slow and frustrating in the eyes of the financial market, but they safeguard our rights and help ensure the equitable distribution of land and its benefits. It is these systems that have ensured our survival as a people into the 21st century.”
After an initial problem-solving process undertaken by the Office of the Special Project Facilitator failed to address the chiefs’ concerns, they transferred their complaint to the Compliance Review Panel, a separate arm of the ADB’s Accountability Mechanism. In its preliminary investigation, the Compliance Review Panel found that there was evidence that ADB violated its operational policies in advising the Samoan government to adopt the reforms. The panel recommended that a full compliance investigation be undertaken, but the ADB Board of Directors took the unprecedented step of overruling the Panel and declined to authorize such a review, undermining the Accountability Mechanism’s independence.
Despite the ADB Board’s refusal, the accountability process did yield important results: In 2019, legislation passed by the government of Samoa created a separate registry system to safeguard customary land.
Four Samoan village chiefs, Fiu Mata’ese Elisara, Leuluaialii Tasi Malifa, Lilomaiava Ken Lameta and Telei’ai Sapa Saifaleupolu, requested Inclusive Development International’s support in 2014 as part of their efforts to stop the ADB-backed land reforms and financial deregulation, which they believed would undermine the customary land tenure system that had served as a critical social safety net and a core of political and cultural life in Samoa for thousands of years.
We provided support to the chiefs in preparing and submitting the complaint to the ADB’s Accountability Mechanism. The complaint argued that the ADB had failed to comply with its policies and procedures in advising the Samoan government to adopt reforms that appeared to be in breach of constitutional protections of customary land in Samoa, and that would be severely detrimental to the Samoan people, including through land alienation and dispossession.
The chiefs stated in the complaint: “We object to the ADB’s determination to dispense with our customary laws and systems, which have successfully safeguarded the interests of the aiga for millennia… The risk runs high that benefits will flow not to local communities, but to foreign investors and national elites… Meanwhile, members of our aiga will face dispossession from potentially large tracts of land, foreseeably resulting in loss of income, threats to food security and impoverishment.”
As the complaint noted, the ADB had failed to conduct appropriate environmental and social due diligence, to undertake meaningful consultation, and to trigger its policy on Indigenous Peoples as part of its Technical Assistance Promoting Economic Use of Customary Land project, resulting in reforms that were incompatible with the Indigenous culture and political institutions of Samoa, and that were inconsistent with the needs and aspirations of the Samoan people.
These failures not only meant that critical procedural and substantive protections were absent throughout the reform process but also meant a missed opportunity to promote economic use of customary land through culturally, socially and politically appropriate means. As Lilomaiava Ken Lameta, matai of Vaimoso and Safotu said: “If the ADB and Samoan government listened carefully, they will hear plenty of good ideas to enhance customary land productivity in a way that truly benefits local communities.”
Inclusive Development International’s senior legal and policy director Natalie Bugalski said at the time: “The reforms in Samoa are typical of the ADB’s approach. The development bank has a habit of viewing land solely as a commodity to be integrated into financial markets. The ADB needs to respect the fact that some societies have a different relationship with their land and value its enduring social function above its financial value.”
The Accountability Mechanism found the complaint eligible in November 2014 and commenced a “problem-solving” process run by its Office of the Special Project Facilitator (OSPF). After conducting an assessment, the OSFP concluded that the complaint could be resolved by undertaking a consultation process with stakeholders in Samoa. The ADB engaged a consultant to work with the Samoan government to design and carry out these consultations, which got underway in 2015. However, the complainants were not satisfied with the “forward-looking” scope of the consultation, which failed to address the concerns at the heart of their complaint–namely, the harmful reforms that already took place under the current and preceding phases of the ADB-financed project. They did not feel that these consultations were meaningful or effective, so they transferred their complaint to the Compliance Review Panel in April 2016.
The Compliance Review Panel undertook an initial investigation, as part of its eligibility assessment, and found that there was evidence that ADB violated its operational policies in advising the Government of Samoa to adopt reforms that were likely to cause direct and material harm to the Samoan people.
The Panel criticized ADB for failing to consult customary landowners and consider their views and concerns in the advice provided to the Samoan government. And it found that this failure resulted ADB recommending “piecemeal changes to customary land laws leading to uncertainty and an abridgment of some customary land rights.” The diminution of the bundle of rights associated with customary land ownership, which resulted from ADB’s advice, the Panel found, was “likely to cause direct and material harm to the complainants and project affected people.”
Despite the ADB panel’s conclusion and recommendation that the prima facie evidence of noncompliance was serious enough to warrant a full compliance investigation, the ADB Board of Directors took the unusual and problematic decision of overruling the Panel’s recommendation and declined to authorize a full investigation.
Inclusive Development International’s Executive Director David Pred said at the time, “This decision reeks of conflicts of interest. Firstly, the director who represents Samoa on the ADB Executive Board sits on the committee that recommended overruling the Compliance Review Panel’s decision and there’s no indication that he recused himself.
The Board Compliance Review Committee, which made the recommendation not to authorize the full review, cited conflicting opinions that it had received from the independent Compliance Review Panel and the bank’s Office of General Counsel about whether ADB’s actions caused or was likely to cause harm. The committee also recommended deferring a full investigation due to “indications that the Government of Samoa will propose legislative changes that would substantially remove material harm to the complainants.”
“The question one must ask is why does the ADB Board have an independent accountability mechanism to investigate complaints if it is just going to ignore its findings and instead take its cues from the very lawyers whose job it is to defend ADB Management against such complaints,” said Pred. “That is the very definition of a conflict of interest.”
Leuluaialii Tasi Malifa, lawyer and matai of Afega village, said: “If the Government of Samoa is preparing legislation that truly addresses our concerns, and ensures that the Constitutional prohibition on alienation of customary land is fully safeguarded, then this will be a positive outcome of our complaint. But if this legislation does not materialize or is inadequate, we will continue to demand a full accounting from ADB.”
In March 2017 Phase III of the ADB project ended, having drafted legislation to respond to the complaint to the ADB Accountability Mechanism. In July 2019 the Leases and Licenses of Customary Lands Amendment Act 2019 passed. This Act outlawed the use of the Torrens land registry for the registration of any interest in customary land, including leases. The act also established important rights of customary landowners around leases and leasehold mortgages of customary land, though leaving several outstanding issues unaddressed, including how customary land leases would be registered, and what the foreclosure process for leasehold mortgages would be.
One of the main concerns of the complainants was the incompatibility of a Torrens land registry for registering interests and ownership of customary land. The 2015 and 2019 legislative amendments, which outlawed this, was a direct result of their complaint. Overall, the chiefs felt that though substantive issues remain, and there were substantial flaws in the process, the ADB accountability process that Inclusive Development International accompanied them through resulted in some important accomplishments. They were able to attract the attention of government, bolster political organizing, secure a valuable opportunity for community consultation, and secure two legislative wins that put in place some protections against the alienation of customary land.
Chiefs not satisfied, complaint elevated — Samoa Observer — April 17, 2016
ADB says new plans won't alienate Samoans from land — Radio New Zealand — May 1, 2015
Samoan matai not consulted over land — Radio New Zealand — April 20, 2015
Calls for more talks on Samoan custom land project — Radio New Zealand — April 17, 2015
