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2008 Lawasia J. 46 (2008)
Land, Law and the Faa-Samoa

handle is hein.journals/lawasiaj9 and id is 52 raw text is: LAND, LAW AND THE FAA-SAMOA Jennifer Corrin* 1 INTRODUCTION Land is at the very core of everything connected to the faa-Samoal - culture, titles, language, aiga2 and people.3 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.4 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.5 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.6 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. This article examines the problems surrounding land tenure and land dispute resolution in Samoa arising from legal pluralism and the demands of the modem world. After a brief introduction to the country and its culture, the article goes on to describe the legal system of Samoa, putting it into its historical context. It then looks at the system of land tenure and discusses land use and, more particularly the ways in which customary land may be alienated. The methods of resolving customary land disputes in Samoa are then * Associate Professor and Executive Director, Asia Pacific Law, Centre for International, Public and Comparative Law, TC Beime School of Law, The University of Queensland. I Loosely translated this means the 'Samoan way'. For a more detailed explanation of the term see Malama Meleisea, Change and Adaptation in Western Samoa (1992) 23-24. 2 Translated to mean 'extended families'. 3 Tu'u'u leti Taule'alo, So'oialo David Fong and Patea Malo Setefano, Samoan Customary Lands at the Crossroads - Some Options for Sustainable Management (Paper presented at the National Environment Forum, Apia, 2002) 1. 4 Constitution of Samoa 1962, Art 102. 5 Jennifer Corin Care, 'A Green Stick or a Fresh Stick: Locating Customary Penalties in the Post- Colonial Era' (2006) 6(1) Oxford University Commonwealth Law Journal 27, 27-28. 6 Ibid 49.

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