Land, Law Reform and the FAA-Samoa
Lawasia Journal, 13 27-52
Posted: 27 Jun 2015
Date Written: 2008
Land is fundamental to Samoan society and identity and has a symbolic and cultural value that cannot be assessed in economic terms alone. This significance is recognised by the Constitution, which prohibits the alienation of customary land, except in limited circumstances. However, there is serious tension regarding land tenure and use in Samoa today arising mainly from the competing demands of commercial development and tradition. This tension is exacerbated by Samoa's pluralistic legal system, comprised of both customary and formal laws. These laws have different origins and often embody conflicting values. Formal laws, introduced from overseas during the colonial era, were developed over a long period of time in England, New Zealand or Germany to accommodate local circumstances and respond to societal change in their country of origin. Those laws express key (Western) concepts of the liberal democratic tradition, including individual rights and freedoms and gender equality. Tensions arise when such laws are transplanted into the social, political and legal culture of a Pacific Island nation, with its pre-existing systems of custom and culture based on values emphasising status and communal interests. Competition between these values comes to a head when questions about land arise. In particular, Western capitalist concepts of individual property ownership conflict with customary principles of communal land tenure. Further conflicts are revealed in the different approaches to resolution of land disputes. The introduced court system applies strict rules of evidence in an adversarial context, whereas the customary system demands an inquisitorial approach with more flexible solutions tailored to the particular situation and designed to restore harmony in the community.
JEL Classification: K00
Suggested Citation: Suggested Citation