Village Fono Amendment Act (No. 3 of 2017)

10. Consequential amendment and transitional __________ 2017, No. 3 2 Village Fono Amendment 2017, No.3 AN ACT to amend the Village Fono Act 1990 (“principal Act”). [26th January 2017] BE IT ENACTED by the Legislative Assembly of Samoa in Parliament assembled as follows:

1. Short title and commencement: This Act may be cited as the Village Fono Amendment Act 2017, and commences on the date of assent by the Head of State.

2. Section 2 amended: For section 2 of the principal Act: (a) in the definition of “village misconduct”, for “section 5” substitute “sections 5 and 12(4)”; and (b) insert the following definitions in their alphabetical positions: ““faiga fa’avae” or “i’ugafono” means village faiga fa’avae or i’ugafono made pursuant to section 5; “Chief Executive Officer” means the Chief Executive Officer of the Ministry; “freehold land” has the meaning in Article 101(3) of the Constitution; “government land” has the meaning in section 2 of the Lands, Surveys and Environment Act 1989; 2017, No.3 Village Fono Amendment 3 “leasehold land” means land that is the subject of a lease; “lease” has the meaning in section 2 of the Land Titles Registration Act 2008; “Ministry” means the Ministry responsible for Internal Affairs; “Register” means the Register kept and maintained under section 5D; “Sui-o-le-Nuu” means the person appointed as Sui-o-le-Nuu under section 14 of the Internal Affairs Act 1995; “Banishment” means an offender is prohibited from being involved in village affairs, and is expelled from the village, never to be seen in the village until the village fono decides to uplift the banishment; “ostracism” means an offender is prohibited from being involved in village affairs but still reserve the right to live in their respective homes within the village.”.

3. New section 2A inserted: After section 2 of the principal Act, insert: “2A. Objects: The objects of this Act are: (a) to provide for the recognition and protection of Village Fono; 4 Village Fono Amendment 2017, No.3 (b) to confer the exercise of power and authority by Village Fono in accordance with custom and usage of their village; (c) to validate the past and future exercise of powers and authority by Village Fono; (d) to provide procedures to be followed by Village Fono when undertaking inquiries into village misconduct or imposing punishment, including banishment or ostracism; and (e) to empower Village Fono to make faiga fa’avae or i’ugafono.”.

4. Section 4 substituted: For section 4 of the principal Act, substitute: “4. Evidence of village misconduct and punishment: (1) A Village Fono may keep written record of its inquiry into any allegation of village misconduct or of any punishment imposed. (2) A person who is found by a Village Fono to have been guilty of village misconduct is not, by reason only of that fact, to be treated as guilty of a crime or offence under any enactment. 2017, No.3 Village Fono Amendment 5

5. Section 5 amended: In section 5 of the principal Act: (a) for the section heading, substitute “Powers of Village Fono”; and (b) for references to “rules” substitute “faiga fa’avae” or “i’ugafono” wherever it appears; (c) in subsection (2), substitute: “(2) A Village Fono may make faiga fa’avae or i’ugafono for application in its village in relation to the following: (a) hygiene and sanitation; (b) development and use of village land for the economic betterment of the village; (c) harmony; (d) improvement of living standards; (e) enquiring any person to do any work for the purposes of paragraphs (a) to (d); (f) imposing a curfew within any village or village land in accordance with village customs and practices (including the power to exempt any person during a curfew if necessary in an emergency situation or to enforce the curfew); (g) promoting social cohesion and harmony; 6 Village Fono Amendment 2017, No.3 (h) classifying village misconducts and penalties; (i) protecting Samoan customs and traditions; (j) safeguarding village traditions, norms and protocols; (k) protecting natural resources and the environment; (l) promoting natural justice and fairness principles in decision making processes and procedures; (m) recording of minutes or discussions during Village Fono meeting; (n) any other matter to give effect to or to promote wellbeing, development and maintenance of harmony and good order of the village and its inhabitants.”; (d) after subsection (3), insert: “(4) The powers to make faiga fa’avae or i’ugafono under subsection (2) includes the power to amend, suspend, revoke or replace faiga fa’avae or i’ugafono.”.

6. New sections 5A to 5F inserted: After section 5 of the principal Act, insert: 2017, No.3 Village Fono Amendment 7 “5A. Registration of faiga fa’avae or i’ugafono: (1) A Sui-o-le-Nuu (or any authorised representative of the Sui-o-le-Nuu) may send their original of the faiga fa’avae or i’ugafono to the Chief Executive Officer for registration in the Register of faiga fa’avae or i’ugafono. (2) The original faiga fa’avae or i’ugafono must state: (a) the date of approval of the faiga fa’avae or i’ugafono by the Village Fono; and (b) the commencement date of the faiga fa’avae or i’ugafono. (3) When the Chief Executive Officer receives the faiga fa’avae or i’ugafono, the Chief Executive Officer must: (a) stamp (including the date of stamping) the faiga fa’avae or i’ugafono; and (b) retain the original faiga fa’avae or i’ugafono; and (c) make and certify five (5) copies of the registered faiga fa’avae or i’ugafono and send a certified true copy to each of the following for their records - (i) the Sui-o-le-Nuu (or any authorised representative of the Sui-o-le-Nuu) who sent the faiga 8 Village Fono Amendment 2017, No.3 fa’avae or i’ugafono under subsection (1); and (ii) the Registrar of Land and Titles Court; and (iii) the Attorney General; and (iv) the Clerk of the Legislative Assembly; (v) the Ministry of Police.

5B. Mode of registration: The registration of faiga fa’avae or i’ugafono is effected by entering the following in the Register: (a) the name of the Village Fono that makes faiga fa’avae or i’ugafono and the name of the village where the faiga fa’avae or i’ugafono will apply; (b) the name or title and the commencement date of the registered faiga fa’avae or i’ugafono; (c) the date of stamping of the faiga fa’avae or i’ugafono under section 5A(3)(a); (d) any other information determined by the Chief Executive Officer.

5C. Effect of registration: (1) The registration of faiga fa’avae or i’ugafono under section 5A must not be taken as if 2017, No.3 Village Fono Amendment 9 the whole or part of the faiga fa’avae or i’ugafono are consistent with the Constitution. (2) The non-registration of any faiga fa’avae or i’ugafono under section 5A does not invalidate or affect the operation of the faiga fa’avae or i’ugafono in the applicable village.

5D. Register of faiga fa’avae or i’ugafono: The Chief Executive Officer must keep and maintain a Register of Village Fono faiga fa’avae or i’ugafono.

5E. Search of Register: The Register is open to search and inspection by the public.

5F. Delegation by the Chief Executive Officer: (1) The Chief Executive Officer may delegate to an officer of the Ministry (“delegate”) all or any of the powers of the Chief Executive Officer under this Act except the power of delegation in this section. (2) The delegate: (a) may exercise delegated power in the same manner and with the same effect as if the power had been conferred on the delegate directly by 10 Village Fono Amendment 2017, No.3 this section and not by delegation; and (b) is presumed, in the absence of proof to the contrary, to be acting pursuant to the terms of the delegation. (3) A delegation may be made: (a) to a specified officer or class of officers; or (b) to the holder or holders of a specified office or class of offices. (4) A delegation: (a) is to be in writing and signed by the Chief Executive Officer; and (b) may be subject to any special or general conditions; and (c) does not prevent the exercise of any delegated power by the Chief Executive Officer; and (d) is revocable at will; and (e) until revoked, continues in force, even if the Chief Executive Officer who made it has ceased to hold office; and (f) continues to have effect as if it were made by the successor in office of that Chief Executive Officer.”.

7. Section 6 amended: For section 6 of the principal Act: 2017, No.3 Village Fono Amendment 11 (a) renumber the current provision as subsection (1); (b) after paragraph (a), insert: “(aa) subject to subsection (2), the power to order banishment or ostracism;”; (c) after the proposed subsection (1), insert: “(2) Before exercising its power under subsection (1)(aa), the Village Fono must, as a minimum, comply with the following procedures: (a) inform the alleged offender of the allegations against the offender, and any evidence supporting the allegations; (b) give the alleged offender an opportunity to respond, either orally or in writing and within a reasonable specified time, to the allegations and any supporting evidence; (c) give the alleged offender the option of having a support person or persons or representative to support or represent the offender 12 Village Fono Amendment 2017, No.3 when he or she responds and makes submissions on the allegations against him or her; (d) if the response received under paragraph (b) confirms the allegations, give the offender an opportunity to make a submission on, what the alleged offender believes, is the appropriate penalty for the misconduct. (3) The response made under subsection (2)(b) may either confirm or contradict the allegations and any evidence in support of the allegations against the alleged offender. (4) The Village Fono must take into account the response and any submissions made by the alleged offender under subsection (2) before it decides to confirm or reject the allegations and any supporting evidence. (5) For the purposes of subsection (4), the Village Fono may take into account the faa-Samoa decision making process to ensure thorough discussions of the allegation and in particular where the Village Fono considers the allegation as serious. (6) Despite subsection (2), the Village Fono may exercise its power under subsection 2017, No.3 Village Fono Amendment 13 (1)(aa) if an alleged offender does not respond to the Village Fono within a reasonable specified time pursuant to subsection (2)(b). (7) As an exception to section 11, the person against whom the banishment or ostracism order is made under subsection (1)(aa) may appeal the order to the Land and Titles Court.”.

8. Section 9 substituted: For section 9 of the principal Act, substitute: “9. Limitation of jurisdiction of Village Fono: (1) Subject to this section, the relevant Village Fono does not have jurisdiction over a person residing on Government, freehold or leasehold land located within village land where that person: (a) is not a Matai of that village; or (b) is not liable in accordance with the custom and usage of that village to render tautua to a Matai of that village. (2) A Village Fono may, in any manner it considers appropriate, inform any person living on government land, freehold land or leasehold land within its village land 14 Village Fono Amendment 2017, No.3 about any village faiga fa’avae or i’ugafono registered under section 5A. (3) Where the Village Fono has reasonable cause to believe that a person informed under subsection (2) disrupts or is likely to disrupt harmony within the village, Village Fono may summon that person to appear before them to discuss the Village Fono’s concerns with a view to resolving those concerns. (4) If the person fails to appear before the Village Fono or where the concerns of the Village Fono are not resolved, the Village Fono may request the registrar to convene a Samoan Conciliation under the Land and Titles Act 1981 to resolve the matter. (5) A person commits an offence and is liable to a fine not exceeding 5 penalty units if the person fails to attend a Samoan Conciliation required under subsection (4).”.

9. New section 12 inserted: For the principal Act, after section 11, insert: “12. Structures and activities for community purposes: (1) If a person proposes: (a) to construct a building or structure of any kind; or 2017, No.3 Village Fono Amendment 15 (b) to undertake any activity, for community purposes on village land, the person must first consult with the Village Fono to approve the building, structure or activity before it is constructed or undertaking the activity. (2) When considering a request under subsection (1), the Village Fono must take into account the following factors: (a) the community purpose for the use of the building or structure or for undertaking the activity; (b) whether the building, structure or activity will have any benefit to the village and its community; (c) whether any other person in the village will be or likely to be adversely affected if approval is given, and the extent to which the person will be affected; (d) the effect on the applicant if the approval is declined; (e) consent of the matai of the family who are beneficial owners of the land. (3) In this section: “community purpose” includes any purpose (including large business operations) which impacts on the 16 Village Fono Amendment 2017, No.3 promotion of Samoan customs and traditions, community safety, health and wellbeing, social cohesion and village harmony; “person” includes family, organisation or any community group. (4) A person who constructs a building or structure or undertake an activity without the approval under subsection (1) is guilty of village misconduct and is liable to any punishment under section 6 or imposed pursuant to the powers granted or preserved under this Act.

10. Consequential amendment and transitional: (1) The Internal Affairs Act 1995 is amended by repealing sections 5(1)(f) and 18(2)(b). (2) Despite subsection (1), any regulations made pursuant to section 18(2)(b) of the Internal Affairs Act 1995 or bylaw proposed and made under the regulations continue in force as if they were made under this Act until revoked or replaced as faiga fa’avae or i’ugafono under this Act. __________ The Village Fono Amendment Act 2017 is administered by the Ministry of Women, Community and Social Development. Printed by the Clerk of the Legislative Assembly, by authority of the Legislative Assembly.