The land and titles court of Samoa, 1903 - 2008 : 'continuity amid change'

Abstract

This thesis is a study of the Land and Titles Court of Samoa from its inception to the present day. It has exclusive jurisdiction over Samoan customary land and matai title matters. The Land and Titles Court began as a Commission in 1903 and survived three different administrations - German, New Zealand and Independent Samoan. Despite significant political changes, the Court has retained its general aim and objective of resolving disputes concerning Samoan customary lands and matai titles (names). It is now enshrined in the Constitution of the Independent State of Samoa 1960 (Samoa) which provides for the continuation of the Court. Its exclusive jurisdiction over customary lands and matai title matters is now governed by the Land and Titles Act 1981 (Samoa).

The Court is a cross-cultural legal institution bridging the European and Samoan cultures and the colonial and post-colonial eras. The Court exhibits many of the features of a European court, but applies the 'customs and laws of Samoa' and operates in the Samoan language. It exists as a specialised enclave within the wider Samoan legal system, which is based largely on European law. Despite its colonial origins and significant political changes that occurred during the twentieth century, the Court has retained its original purpose. However, its composition and processes have changed over the years from being almost exclusively European to being predominantly Samoan. The Court is now of crucial importance to Samoan life and has a central role in protecting Samoan custom and resolving disputes in accordance with customary law.

What this study has found is that the life and workings of the Court over the past century can be captured in the overarching theme of 'continuity amid change' which is expressed in the push and pull between the pressures of colonisation, decolonisation and commercialisation of land. These themes structure this general study's consideration of various aspects of the Court: its history, its practice and procedures, its decision making processes, its relations with other Samoan courts, the social, political and legislative context within which it has developed and currently operates, the problems it faces or areas of possible improvement and, finally, its future. One of the main issues the Court faces today is its continual existence and relevance in a modern, commercialised world. The pressure to commercialise land will change the role of the Court. The question is whether the change that the Court will have to undergo to ensure its survival will undermine or strengthen its role as guardian of Samoan lore, customs and tradition.

I decided to study the Land and Titles Court as a means of preserving and reviving the Faamatai and Samoan custom. I also wanted to capitalise on the deference that academia is paid in order to raise the awareness of Samoan philosophy, tradition and custom. My hope is to present an alternative paradigm, not merely tabulating inflections, but a fulcrum by which influence, understanding and empathy would be brought to bear on the 'Samoan-ness' of our lifestyle, which may also be the axis of a sensitive melding of the indigenous and the foreign. This has also been an opportunity to describe and record the Court in all its glory, and failings, from the perspective of a Samoan who is familiar with the language, the society, and the culture upon which the foreign structure of the Court was imposed. The hope is that this exploration of the Court by a Samoan may find a turangawaewae in international scholarship.

The Court is an example of survival through adaptation. The survival of the Court, a colonial creation has, ironically, become a parallel story to that of the survival of Samoan custom. As the Court's existence is a remnant of colonisation, one would expect it to be the bane of custom, and all things Samoan. As history would have it, the Court has in fact become a bastion of Samoan custom, especially concerning customary land and matai titles, which are at the heart of what it is to be Samoan. Whatever the original, colonial, founders of the Court had in mind when they established this institution, it has, I believe, become a last hope for the future of Samoan custom in a rapidly modernising and highly commercialised world.