Sep 15, 20164 min read

Official investigation finds ADB failed to consult Samoan people before pushing harmful land reforms

(Apia, 6 September 2016) - The Asian Development Bank’s internal watchdog has found there is evidence that ADB violated its operational policies in advising the Government of Samoa to adopt controversial land and financial sector reforms. The decision from the ADB Compliance Review Panel came after a preliminary investigation into a complaint submitted by a group of Matai (chiefs of villages in Samoa) regarding a series of ADB projects called Promoting Economic Use of Customary Land. The chiefs are concerned that the ADB-driven reforms, which were carried out without meaningful consultation of the Samoan people, risk dismantling the customary land tenure system that has been the foundation of Samoan civilization for thousands of years. Approximately 80 percent of land in Samoa is governed under the customary tenure system, which disallows the individual ownership of land in favor of collective ownership. The system promotes equitable allocation of family lands to all its members, in keeping with customs and rules applicable to that family. The ADB-driven reforms make it easier to lease customary land and to use those leases as collateral for loans. The ADB advised the Samoan government to adopt a system through which an individual can unilaterally lease out customary land, without getting the consent of other members of the family. The lease agreement could then be used by the leaseholder to access credit from a bank. But if the leaseholder is unable to repay the loan, the bank can repossess the lease, and take control of the customary land for decades. The Panel criticized ADB for failing to consult customary landowners and consider their views and concerns in the advice provided to the Samoan government: “Well thought out advice given after wide, accountable and meaningful public consultations might have highlighted the concerns and fears expressed by the complainants and other customary landowners…There is prima facie evidence that suggests that inadequate consultations under the [projects] have deprived the customary landowners in Samoa of the opportunity to surface these concerns in a timely fashion and to have them properly addressed in the advice, consultant reports, draft legislation, and draft papers developed under the…projects.” The Panel found that ADB “recommended piecemeal changes to customary land laws leading to uncertainty and an abridgment of some customary land rights.” The diminution of the bundle of rights associated with customary land ownership, which resulted from ADB’s advice, the Panel found, was “likely to cause direct and material harm to the complainants and project affected people.” Despite the panel’s conclusion and recommendation that the prima facie evidence of noncompliance is serious enough to warrant a full compliance investigation, the ADB Board of Directors decided not to authorize such a review at this time. Fiu Mata’ese Elisara, matai of Sili and Savaii and Executive Director of Ole Siosiomaga Society Incorporated, said: “We are happy that the Compliance Review Panel has validated our complaint, and we particularly welcome the panel’s finding that ADB violated its policies by failing to engage communities in meaningful consultations before advising our government on matters of such fundamental importance to our identity and way of life.” “We are, however, disappointed and puzzled as to why the panel’s recommendation was overruled by the Board, which failed to authorize a full investigation,” he added.

“This decision reeks of conflicts of interest,” said David Pred, Managing Director of Inclusive Development International, which has been advising the complainants. “Firstly, the director who represents Samoa on the ADB Executive Board sits on the committee that recommended overruling the Compliance Review Panel’s decision and there's no indication that he recused himself."

The Board Compliance Review Committee, which made the recommendation not to authorize the full review, cited conflicting opinions that it had received from the independent Compliance Review Panel and the bank’s Office of General Counsel about whether ADB’s actions caused or is likely to cause harm. The committee also recommended deferring a full investigation due to “indications that the Government of Samoa will propose legislative changes that would substantially remove material harm to the complainants.” “The question one must ask is why does the ADB Board have an independent accountability mechanism to investigate complaints if it is just going to ignore its findings and instead take its cues from the very lawyers whose job it is to defend ADB Management against such complaints,” said Pred. “That is the very definition of a conflict of interest.”

Leuluaialii Tasi Malifa, lawyer and matai of Afega village, said: “If the Government of Samoa is preparing legislation that truly addresses our concerns, and ensures that the Constitutional prohibition on alienation of customary land is fully safeguarded, then this will be a positive outcome of our complaint. But if this legislation does not materialize or is inadequate, we will continue to demand a full accounting from ADB."

The Compliance Review Panel’s Report on Eligibility is available at this link:

https://compliance.adb.org/dir0035p.nsf/attachments/SAM-EligibilityReport-18Aug_Web.pdf/$FILE/SAM-EligibilityReport-18Aug_Web.pdf

The Chair’s Summary of the Board Compliance Review Committee proceedings is available at this link:

http://www.adb.org/documents/chairs-summary-bcrc-crp-request-n20162

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