LAWS OF WESTERN SAMOA

ALIENATION OF CUSTOMARY LAND

ANALYSIS

TITLE
PART I
INTRODUCTORY

1. Short title
2. Interpretation

PART II
LEASING AND LICENSING

3. Prohibiting some leases and licences
4. Power to grant lease or licence
5. Application to grant lease or licence
6. Form of application
7. Requiring survey
8. Publishing of application
9. Disposal of objections
9A. Forestry
10. Preparation and completion of lease or licence
11. Payment of rent or other consideration
12. Fees and commission
13. Prepayment of fees
14. Dispensing with fees or commission
15. Land and Titles Court fees
16. No distress for rent
17. Surrenders
18. New lease or licence
19. Repeals
Schedules

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THE ALIENATION OF CUSTOMARY LAND ACT 1965

1965 No. 24

AN ACT to provide for the leasing and licensing of customary land for certain purposes.

(15 October 1965)

PART I
INTRODUCTORY

1. Short title - This Act may be cited as the Alienation of Customary Land Act 1965.

2. Interpretation - In this Act, unless the context otherwise requires:

"Act" includes Ordinance.

"Agricultural purpose" includes forestry, horticulture and fisheries (but not fish canning).

"Authorised purpose" means a public, hotel, industrial, commercial, business or religious purpose.

"Beneficial owner", in relation to any customary land or any interest therein, includes any Samoan who is entitled in equity to occupy the same or to share in the occupation thereof or to have the income therefrom or a share in that income paid to or held in trust for him, or who is entitled in equity to any such benefit contingently or in reversion; and does not include any Samoan who holds any such land or interest only by way of trust, mortgage or charge.

"Business purpose" includes an agricultural and a pastoral business purpose.

"Constitution" means the Constitution of Western Samoa.

"Court" and "Land and Titles Court" means the Land and Titles Court referred to in Article 103 of the Constitution.

"Customary land" has the same meaning as in Article 101 of the Constitution.

"Director" means the Director of Lands, Surveys and Environment.

"Forest produce" includes all trees and other plants and the produce of trees and other plants and also includes earth, sand and minerals when found in or removed from any forest land.

"Forestry" means the application of business methods and technical forestry principles to operations on lands for the establishment, culture, protection and maintenance of forests, or for the production, extraction or conversion of forest produce including the provision of access to such lands.

"Government" means the Government of Western Samoa.

"Hotel" means a residential building which is designed and intended to be used for providing board and lodging for reward for 6 or more persons, whether or not it is designed and intended to be used also for the sale of liquor.

"Industrial purpose" does not include wholesale or retail trade, a commercial, agricultural, or pastoral purpose, a mine, a quarry, a construction business or the provision of services; but does include manufacturing and processing.

"Manufacturing or processing" includes:

(a) Manufacturing or processing or both of food, beverages, tobacco, textiles, textile goods, wearing apparel, footwear, leather, leather products, furniture, fixtures, wood and cork products, paper and paper products, printing, publishing, rubber products, chemicals and chemical products, petroleum and coal products, metallic and nonmetallic mineral products, electrical machinery, apparatus, appliances and supplies, transport equipment and other machinery and metal products;

(b) Generation, transformation and distribution of electrical energy, gas or steam for trade or sale;

(c) Provision of water or sanitary works;

(d) Every abattoir within the meaning of section 41 of the Health Ordinance 1959;

(e) Every bakery within the meaning of section 41 of the Health Ordinance 1959;

(f) The business of pasteurising milk carried on for trade or sale otherwise than on a farm or plantation;

(g) Every offensive trade within the meaning of section 2, of the Health Amendment Act 1965 carried on for trade or sale;

(h) Every other industry in which 3 or more persons are engaged or employed in manufacturing or processing and packing raw materials or goods for trade or sale, whether by means of electrical energy, gas, steam or any mechanical power or appliance or not.

"Minister" means the Minister of Lands, Surveys and Environment.

"Public purpose" has the same meaning as in the Taking of Land Act 1964.

"Registrar" means the Registrar of the Court and includes a Deputy Registrar.

"Samoan" means a person who is a citizen of Western Samoa, and has any Samoan blood.

"Savali" means the official newspaper published by the Government.

"Western Samoa" means the Independent State of Western Samoa.

(For eligibility to hold a Matai title, see section 6 of the Samoan Status Act 1963.
For definition, duties and registration of Matais, see the Land and Titles Act 1981.
For the Land and Titles Court, see Part VI of the Land and Titles Act 1981: this Court decides disputes in respect of customary land law, which includes Matai titles.
The Commission set up under the Land Titles Investigation Act 1966 has no authority to make any determination or order as to the ownership or control of customary land; see section 20 of that Act.)

PART II
LEASING AND LICENSING

3. Prohibiting some leases and licences - It shall not be lawful to lease or license any customary land for any agricultural or pastoral purpose to any Samoan who is not for the time being holder of a Matai title.

(As to Matai titles, see section 6 of the Samoan Status Act 1963.)
(The Public Trustee may not be appointed manager of unclaimed customary land; see section 71 (2)(a), (b) of the Public Trust Office Act 1975. See the notes to section 2 of this Act.)

4. Power to grant lease or licence - Subject to section of this Act, the Minister, if in his opinion the grant of a lease or licence of any customary land or any interest therein 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, may grant a lease or licence of that customary land or interest therein as trustee for such owners:

(a) For an authorised purpose approved by the Minister;

(b) If the authorised purpose so approved is a hotel or industrial purpose, for a term not exceeding 30 years, with or without a right or rights of renewal for a term or terms not exceeding an additional 30 years in the aggregate, as may be approved by the Minister;

(c) If the authorised purpose so approved is not a hotel or industrial purpose, for a term not exceeding 20 years with or without a right or rights of renewal for a term or terms not exceeding an additional 20 years in the aggregate, as may be approved by the Minister;

(d) For such rent or other consideration payable to the Director, reviewable or not, and if reviewable at such intervals or on such occasions and in such way, as may be approved by the Minister, and

(e) Subject to such other covenants, conditions and stipulations as may be approved by the Minister:

PROVIDED THAT where the Minister is leasing or licensing customary land for forestry:

(i) The lease or licence shall conform, not only to this Act, but also to the Forests Act 1967; and

(ii) Where the lessee or licensee is a person other than the Minister of Agriculture, Forests and Fisheries, the Minister shall include such covenants, conditions and stipulations as to forestry as shall be requested by the Minister of Agriculture, Forests and Fisheries.

(As to the Public Trustee, see the note to section 3 of this Act.
As to wills of customary land, see the definition of real estate in section 2 of the Wills Act 1975.)

5. Application to grant lease or licence - Wherever any Samoan claiming to be a beneficial owner of any customary land or of any interest therein desires that the Minister shall grant a lease or licence of such land or of any interest therein under the powers conferred by section 4 of this Act, such Samoan shall make written application in that behalf to the Director.

6. Form of application - (1) Every application under section 5 of this Act shall propose a beneficial owner or beneficial owners of the customary land or interest therein desired to be leased or licensed as the agent or agents of all beneficial owners, to whom the Director or the Financial Secretary may account for the rent or consideration to be derived from the lease or licence of that land or interest.

(1A) Every application under section 5 of this Act shall also state the full names, occupation and address of the proposed lessee or licensee, and what the applicant and the proposed lessee or licensee propose as to:

(a) Whether a lease or a licence is to be entered into;

(b) The authorised purpose of the lease or licence;

(c) The term of the lease or licence, and of any right of renewal thereof;

(d) The rent or other consideration, when it is to be paid, and any rights of review thereof; and

(e) Any other covenants, conditions and stipulations.

(2) Every application under section 5 of this Act shall otherwise be in such form and give such information as the Director may prescribe.

7. Requiring survey - If the application does not, in the opinion of the Director, sufficiently describe the land or interest desired to be leased or licensed the Director may require the applicant to provide or pay for a survey of such land or interest, and may refuse to proceed further until such survey has been provided, or paid for by the applicant and made by the Director.

8. Publishing of application - (1) Except as provided in subsection (3) of this section, the Director shall publish in the Savali the main particulars of each application received by him under section 5 of this Act, including the names of the proposed agent or agents.

(2) With each such publication of particulars of an application, the Director shall publish in the Savali a notice fixing a date or period, not being less than 3 months from the date of the publication, not later than or within which, and a place at which, written objections to the proposed leasing or licensing or to the proposed agent or agents may be lodged with the Registrar by any Samoan who claims that he would be affected thereby.

(3) The provisions of subsections (1) and (2) of this section shall not apply:

(a) If the Samoan who makes the application under section 5 of this Act and the proposed agent or agents have been held by the Land and Titles Court to be beneficial owners of the customary land or interest therein in respect of which the application is made, or

(b) If:

(i) The application under section 5 of this Act is a second or subsequent application;

(ii) Particulars of the first application have been duly published in the Savali;

(iii) The beneficial owner making such second or subsequent application is the same person as the beneficial owner who made such first application; and

(iv) Each application proposes the same agent or agents.

9. Disposal of objections - The Registrar shall, as soon as conveniently may be after receiving any objection, prepare, sign and file a petition to the Land and Titles Court for the purpose of having that objection heard and disposed of; and send a copy of the objection to the Director, and another copy to the applicant.

9A. Forestry - (1) Notwithstanding anything to the contrary contained in this Act, where in the opinion of the Minister, acting on the advice of the Minister of Agriculture, Forests and Fisheries, the best use of any customary land is meantime for forestry, the following provisions of this section shall apply.

(2) The Minister may call a meeting of the beneficial owners of that land fur the purpose of determining its future use by giving not less than 30 days' notice of such meeting in the Savali and stating therein that in the opinion of the Minister the land can be best used meantime for forestry.

(3) At any meeting of beneficial owners called as aforesaid (or at any adjourned meeting), the meeting may resolve to apply to the Minister to lease or license any such land for forestry under this Act and the Forests Act 1967, and to propose a beneficial owner or owners as the agent or agents of all beneficial owners.

(4) The Minister shall thereupon obtain from the beneficial owners who ho attend the said meeting their views as to whether the land should he leased or licensed, as to the provisions which should be contained in the lease or licence, and as to prospective lessees or licensees.

(5) Except as provided in subsection (6) of this section, the Director shall thereupon publish in the Savali the resolution of the meeting together with a notice fixing a date or period, not being less than 3 months from the date of publication, not later than or within which and a place at which, a written objection to the said resolution or any part of it may be lodged with the Registrar by any Samoan who claims that he would be affected thereby.

(6) The provisions of subsection (5) of this section shall not apply:

(a) if the Samoan or Samoans who voted in favour of the said resolution at the said meeting and the proposed agent or agents have been held by the Land and Titles Court to be beneficial owners of the customary land covered by the said resolution; or

(b) If:

(i) The said resolution is a second or subsequent resolution;

(ii) The first resolution has been duly published in the Savali;

(iii) The beneficial owner or owners who voted in favour of the said second or subsequent resolutions are the same persons as the beneficial owner or owners who voted in favour of the said first resolution; and

(iv) Each said resolution proposes the same agent or agents.

(7) The Registrar shall, as soon as conveniently may be after receiving any such objection, prepare, sign, and file a petition to the Land and Titles Court for the purpose of having that objection heard and disposed of, and shall send a copy of the objection to each of them the Director and the agent or agents proposed by the beneficial owners who voted in favour of the said resolution at the said meeting.

(8) In cases covered by this section, the said resolution shall be deemed for the purposes of section 5 of this Act to be an application by the beneficial owners who voted in favour thereof at the meeting and the procedure set out in this section shall be in lieu of the procedure set out in sections 6, 8 and 9 of this Act, but the fees payable under section 12 and tile First Schedule of this Act shall be payable as if the said resolution were an application.

10. Preparation and completion of lease or licence - (1) Within one year of the date when all objections to the application have been disposed of, or when the date or the period not later than or within which objections may be lodged has expired without any objection being lodged, and when the Director has informed the applicant that the Minister is of the opinion as required by section 4 of this Act, whichever later occurs:

(a) The applicant shall have a draft of the lease or licence complying with the Minister's approvals under section 4 of this Act prepared by his solicitor at the cost of the proposed lessee or licensee, and submitted to the proposed lessee or licensee and the Director for perusal;

(b) When the draft has been approved by the applicant, the proposed lessee or licensee and the Director, the applicant shall have one original and 2 carbon copies typed and submitted first to the proposed lessee or licensee, and after execution by him to the Director for execution by the Minister; and

(c) The applicant shall then register the lease or licence with the Registrar of Land.

(2) On written application being made to the Minister before or after the expiration of that period of one year, and on proof to the satisfaction of the Minister that the action required by subsection (1) of this section has not been or cannot be completed within that period because of some reasonable cause, the Minister may extend that period.

11. Payment of rent or other consideration - (1) Every such lease or licence shall operate as if it was a lease or licence as the case may be of public land, but the rent or other consideration derived therefrom shall be received by the Director in trust for the beneficial owners of the land or interest therein as the case may be.

(2) It shall be unlawful for any lessee or licensee under any lease or licence granted under this Part of this Act to pay any such rent or other consideration directly to any such beneficial owner.

(3) Part X of the Public Money Act 1964 shall apply to such rent or other consideration received by the Director, except that no charge for the Financial Secretary's services shall be deducted therefrom pursuant to section 47 of that Act.

(4) The Director or the Financial Secretary may account as statutory expenditure for such rent or other consideration, plus any amount of interest certified by the Financial Secretary to have been earned thereon, and less any unpaid fees and commission payable to the Director in the matter, to the agent or agents for the time being of the beneficial owners.

(5) Neither the Director nor the Financial Secretary nor the Government shall be liable to pay any rent or other consideration or damage to any person who claims that he is a beneficial owner of the land or interest from which that rent or other consideration arose; and has not received his share thereof from the agent or agents but nothing in this Act shall prevent any such person prosecuting a claim for his share against the agent or agents.

(As to subsection (1) and the term "public land", see Articles 101(1) and (4), and 123(2) of the Constitution; and as to leases or licences thereof, see the Land Ordinances 1959.)

12. Fees and commission - The Director shall receive and take on behalf of the Treasury such fees and commission for or in respect of any act, matter or thing done by him under this Act as are specified in the First Schedule to this Act.

13. Prepayment of fees - Subject to section 14 of this Act, all fees payable under this Act and specified in the First Schedule to this Act shall be prepaid in cash by the proposed lessee or licensee, and the Director may refuse to accept any application or objection or to take any action thereon unless the said fees have first been paid.

14. Dispensing with fees or commission - Where it appears to the Minister that any person is unable, or ought not to be called upon, to pay or bear any fee or commission specified in the First Schedule to this Act, he may dispense with the payment or taking thereof in whole or in part or may authorise a refund thereof in whole or in part out of the Treasury Fund as statutory expenditure, subject in any case to such terms as he thinks fit.

15. Land and Titles Court fees - Fees shall be charged for all matters coming before the Land and Titles Court under this Act at the rates and in the amounts specified in the Second Schedule to the Samoan Land and Titles Protection Ordinance 1934, as substituted by section 2 of the Samoan Land and Titles Protection Amendment Act 1968.

(Section 2 of the Samoan Land and Titles Protection Amendment Act 1968, being the corresponding enactment in force at the date of this consolidation, has been substituted for the repealed section 7 of the Samoan Land and Titles Protection Amendment Ordinance, 1957.)

16. No distress for rent - Notwithstanding anything to the contrary in any Act, or in any rule of law, no lease or licence granted under this Part of this Act shall contain a power to distrain for rent, and it shall not be lawful for any person to distrain for rent thereunder.

17. Surrenders - The Minister, if in his opinion the surrender of any lease or licence of customary land or any interest therein granted under this Part of this Act is in accordance with the desires and interests of the beneficial owners of that land or that interest as the case may be, may accept that surrender.

18. New lease or licence - Nothing in section 4 of this Act shall, on or before the surrender or the expiration of the term or last renewed term of a lease or licence, prevent the granting of a new lease or licence to the lessee or licensee under the expired lease or licence of the land or interest affected thereby, with or without any additional land or interest, subject to compliance by all parties with the provisions of this Act.

19. Repeals - The enactments specified in the Second Schedule to this Act are hereby repealed.

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SCHEDULES

FIRST SCHEDULE
Section 13

Item	Nature of Fee or Commission	Amount	
		$	
1.	Application to grant lease or licence including advertisement in the Savali and execution	5.00	
2.	Perusal of draft lease or licence	2.10	
3.	Objection to application to grant lease or licence or to the proposed agent or agents (to be applied towards fees payable to the Land and Titles Court)	
5.00	
4.	Commission on rent or other payments of an annual or periodical nature received by the Director on behalf of a Samoan.	5 percent	
5.	Commission on purchase money or any money not being payments of an annual or periodical nature, received by the Director on behalf of a Samoan. But the maximum commission in respect of any one transaction shall not exceed $4.00.	5 percent	

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SECOND SCHEDULE
Section 19

1. The Samoan Land and Titles Protection Ordinance 1934 No 2: Parts I, II and III comprising sections 3 to 12 inclusive.

2. The Samoan Land and Titles Protection Amendment (No.2) Ordinance 1937 No. 6: sections 2 and 3.

3. The Samoan Land and Titles Protection Amendment Ordinance 1957 No. 4:
Items 1, 2, 6, 7, 8 and 9 of the Third Schedule.

NOTE

The Alienation of Customary Land Act 1965 appearing in this reprint comprises that Act as it appears in the 1977 reprint and with the amendment of the addition of the words "or religious" to the definition of "Authorised purpose", as contained in the Alienation of Customary Land Amendment Act 1978, section 3.

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The Alienation of Customary Land Act 1965 is administered
in the Department of Lands, Surveys and Environment.