RE: Customary lands are safe and secure

Dr. Teleiai Mulitalo,

FSM Taua B.A. L.L.B (Auck.1983) 16 September 2017 04.35 p.m.

How Section 32 of the Land Titles Act 2008 steals customary land from all Aiga members alive and gives it to the HRPP Government


Why the HRPP and ADB won’t talk about it at all

3 groups of people are in this section:

1. AIGA rely on Articles 2, 102 & 109 of the Constitution to retain customary land ownership and sovereignty of the land, and agree to a customary land lease believing the Sa’o will hold the land for the Aiga in trust.

2. SA’O relies on S.32 and 33 LTRA 2008 to claim individual title, so that he may sell it as freehold land, which is no longer customary, even if he promises Aiga to hold it in trust for them. Section 79(2)(e) LTRA 2008 specifies that ‘the loss or damage [arising] from the breach by a registered proprietor of any trust’ cannot be compensated by the government. ’In total, there is no protection against breaches of trust; a matai who is the registered proprietor could alienate the land and the beneficiaries will not be compensated by the government.

According to Ruiping Ye, LLM Victoria University, Wellington, section 33 of the LTRA, ‘specifies that knowledge that a ‘trust or unregistered interest is in existence’ is not fraud’, and ‘trust includes registered trust, as opposed to trust as a type of unregistered interest.’ Ye argues, ‘purchasing the land with the knowledge of a registered trust may still not constitute fraud, as is the case in purchasing the land with the knowledge of unregistered interest. This may be so even where there is some dishonesty involved.’ Therefore, the practical effect of sections 32 and 33 would constitute alienation, breaching the substantive law, and therefore be illegal, but the bona fide purchaser’s title will still be unimpeachable.

Articles 102 & 109 do not apply anymore because the land is freehold and not customary and the Sa’o can sell it without any consequence by law.

When the Sa’o registers the land, he gains a freehold title. Freehold property can be defined as any estate which is “free from hold” of any entity besides the owner. Hence, the owner of such an estate enjoys free ownership forever and can use the land for any purposes subject to local laws.

The person that has his/her name registered on the title is considered the true owner of the land: ‘personal private property registration’ – absolutely free from all claims (no more Aiga land rights) not recorded except:

3. HRPP Government – escapes all the protections of Article 102 & 109 & Sections 9 (4) (5) by claiming that the Constitution permits by the proviso in Article 102 the granting of a lease without a National Referendum:

` an Act of Parliament may authorize-

(a) The granting of a lease or license of any customary land or of any interest therein;

(b) The taking of any customary land or any interest therein for public purposes.’

And as the land is no longer customary by the effect of S.32 LTRA 2008 but freehold land of the registered Sa’o, so:

– the state can pass an Act to do any act under S.32 (d) (i -iv):

(i) to enter, go across or do things on land
for the purpose specified in the Act,

(ii) to recover taxes, duties, charges, rates
or assessments by proceedings in respect of

(iii) to expropriate land; or

(iv) to restrict the use of land;

Immunity for the Land Registrar

Dr. Iati Iati of Otago University says in `The Implications of Applying the Torrens System to Customary Lands’,

`Critics noted that the Bill provided the Registrar with ‘wide discretionary powers to manage the system’, while failing to provide appropriate checks and balances for this position. Notably, the Registrar would have ‘discretion in the Bill to make changes to the Folio at any time with or without notifying and affirming that changes were made with the concerned parties.’ A folio is a record of the interests over a particular piece of land (LTRA 2008, Section 10). At the same time, the Bill indemnified those managing the system, stipulating, ‘the Ministry shall not be liable to any action or proceedings for or in respect of any act or matter done or omitted to be done in good faith.’ The Bill did not define ‘In good faith’. Critics argued this opened the way for corrupt, fraudulent, and unfair registrations, particularly as the Bill also contained vague terminology that could be misconstrued and/or manipulated, such as, ‘as the Registrar sees fit’ or ‘the Registrar may assume’

It really means that registration under the LTRA 2008 ends the customary status of land and ends all Aiga land rights giving the Sa’o a freehold title, but he is a slave to the state and must pay taxes or do whatever the HRPP say. The Sa’o escapes responsibility to the Aiga by claiming the land became his because of the Torrens System and the HRPP pay no compensation for breaches of trust by Sa’o to Aiga. The Sa’o can sell all the land and disappear or walk around a free man with no fear of being prosecuted.

The Registrar can make many changes to the land records and claim he thought he was doing the right thing. The corrupt HRPP administration will then frustrate any attempts by Aiga to obtain Justice. Without independent courts and honest lawyers, Aiga have no hope of regaining their customary land or even any compensation while legal bills will bankrupt them.

Written by Maua Faleauto



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