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Joel Klenck, Legal Analysis of Historic Preservation Legislation in Samoa and Proposed Faaaloalo Mo Tuaa Ordinance

Authors:

Abstract

Archaeologist and Juris Doctor, Joel Klenck, completed an analysis requested by the Centre for Samoan Studies, at the National University of Samoa, regarding historic preservation statutes in Samoa. The objective was to determine why so little cultural heritage preservation occurred in lieu of frequent public building projects. A draft ordinance is proposed to define the ministries that review and approve historic preservation measures in Samoa.
Legal Analysis of Historic Preservation Legislation in Samoa and
Proposed Faaaloalo Mo Tuaa Ordinance.
By
Dr. Joel D. Klenck, JD
Senior Lecturer
Archaeology and Cultural Heritage Department
Centre for Samoan Studies
Submitted on
October 15, 2019
To
Dr. Safua Akeli Amaama
Associate Professor & Director
Centre for Samoan Studies
Question: Is historic preservation legislation adequate to protect the cultural heritage of
Samoa?
Answer: No, because legislation does not identify the specific ministry responsible for the
mitigation of loss of historic properties or archaeological sites in Samoa.
There is ample legislation and analyses regarding historic preservation, archaeological sites, and
the protection of antiquities in Samoa.1 Still, conflicts exist between the Ministry of Natural
Resources and Environment (MNRE”) and Ministry of Education, Sports, and Culture
(MESC), as to which ministry is ultimately responsible for historic preservation in Samoa.2,3
1 Constitution of Samoa (1960) arts 101(2) and 102; Samoan Antiquities Ordinance 1954; Planning and
Urban Management Act 2004 ss III(9)(h) and V(46)(h); National Parks and Reserves Act 1974 ss 4, 5, 8
and 8(2)(a); Stevenson Memorial Reserve and Mount Vaea Scenic Reserve Ordinance 1958 ss 2 and 4;
Forestry Management Act 2011 ss 56(1)(a) and 57(1)-(2); Youth, Sports and Cultural Affairs Act 1993/1994
ss 4 and 6(b); Ministry of Women Affairs Act 1990 s 4; Robert Louis Stevenson Foundation Act 1991 ss 3-
4; Ministry of Natural Resources, Environment and Meteorology Policy Statement ‘National Heritage
Conservation Policy’ (2004); Convention for the Protection of the World Cultural and Natural Heritage
(1972), arts 1, 5 and 11; Convention for the Safeguarding of the Intangible Cultural Heritage (2003) arts 2,
7, 12-14 and 16.
2MESC (Culture Division) responsibilities in MESC Corporate Plan (Preserve and nurture
Samoan tangible and intangible heritage; Participate in national efforts to record, protect and
manage national heritage sites; [and] Promote and implement international cultural conventions
and agreements).
3 MNRE responsibilities in Planning and Urban Management Act 2004 s III(9)(h)(To preserve
those buildings areas or other places of scientific, aesthetic, architectural or historical interest, or
Because both ministries can point to the other as the responsible party, there is no final authority
to preserve Samoan heritage. As such, little historic preservation work is completed for public
construction projects.
Question: What legislation should be used to protect the cultural heritage of Samoa?
Answer: A straightforward and minimalistic ordinance citing extant law and delineating that
MESC reviews and MNRE approves cultural heritage preservation proposals for public
construction projects.
Others have suggested the founding of a Heritage Board.
4
While this may be a later development,
the pursuit of a more immediate Faaaloalo Mo Tuaa Ordinance will initiate cultural preservation
activities while clarifying overlapping responsibilities for the preservation of Samoan cultural
heritage.
The Heritage Board also notes involvement with communally-held land that would foment
discussions on the rights of the villages and Matai persons to their own land. This feature could
extend the implementation of a Heritage Board for many years or perhaps indefinitely.
Further, the expansion of this Ordinance to communally-held land is problematic because these
areas involve opaque customary law and the role of the Ali’i and Matai positions.
5
The latter could
complicate the ratification of a cultural preservation ordinance designed for public construction
efforts.
otherwise of special cultural value) and V(46)(h)(Matters the Agency shall consider In determining a
developmental application, the Agency shall consider-(h) Likely effects on cultural and natural heritage).
4
National Heritage Board, Report 13/13; Government of Samoa: Samoa Law Reform Commission, May,
2013.
5
Village Fono Act (1990) s 5(2); Tu'u'u Ieti Taule'alo, So'oialo David Fong and Patea Malo Setefano, 2003,
‘Samoan Customary Lands at the Crossroads – Some Options for Sustainable Management’, Proceedings
of the 2002 National Environmental Forum, Samoa 2; Helene Martinsson-Wallin, 2011, ‘The complexity
of an archaeological site in Samoa: The past in the present’ in Jolie Liston, Geoffrey Clark and Dwight
Alexander (eds), Pacific Island Heritage: Archaeology, Identity & Community, Terra Australis 35
(Canberra: ANU epress); Erika J. Techera, 2010, ‘Synergies and Challenges for Legal Protection of Sacred
Natural Sites in the South Pacific’ in Bas Verschuuren et al (eds) Sacred Natural Sites: Conserving Nature
and Culture, p. 172; Lori Sciusco and Helene Martinsson-Wallin, 2015, Issues in the Management of
Archaeological Heritage in Samoa’, Journal of Samoan Studies, Vol. 5, pp. 620.
Faaaloalo Mo Tuaa Ordinance
Following Samoan faaaloalo mo tuaa, the Constitution of Samoa,
ordinances, acts, policies, and ratifications of international conventions
1
,
the Culture Division of the Ministry of Education, Sports and Culture
(“MESC”) shall review
2
and the Ministry of Natural Resources and
Environment (“MNRE”) shall approve
3
measures to mitigate the loss of
Samoan cultural heritage for public construction projects.
After construction entities submit cultural heritage preservation
proposals to MESC and MNRE, MESC will have 30 days to approve,
modify, or deny a proposal. If MESC does not reply, MNRE shall deem
MESC as having approved the proposed measures and then in turn
approve, modify, or deny cultural heritage preservation proposals
following Samoan legislation and jurisprudence.
Ministries will evaluate cultural heritage preservation proposals aiming
for efficiency, cost-effectiveness, and the utilization of Samoan
resources, personnel, technology, educational facilities, museums, and
archives, while evaluating and before approving public planning and
development projects.
1
Constitution of Samoa (1960) arts 101(2) and 102; Samoan Antiquities
Ordinance 1954; Planning and Urban Management Act 2004 ss III(9)(h) and
V(46)(h); National Parks and Reserves Act 1974 ss 4, 5, 8 and 8(2)(a); Stevenson
Memorial Reserve and Mount Vaea Scenic Reserve Ordinance 1958 ss 2 and 4;
Forestry Management Act 2011 ss 56(1)(a) and 57(1)-(2); Youth, Sports and
Cultural Affairs Act 1993/1994 ss 4 and 6(b); Ministry of Women Affairs Act 1990 s
4; Robert Louis Stevenson Foundation Act 1991 ss 3-4; Ministry of Natural
Resources, Environment and Meteorology Policy Statement ‘National Heritage
Conservation Policy’ (2004); Convention for the Protection of the World Cultural
and Natural Heritage (1972), arts 1, 5 and 11; Convention for the Safeguarding of
the Intangible Cultural Heritage (2003) arts 2, 7, 12-14 and 16.
2
MESC Corporate Plan, 2018, Culture Division.
3
Planning and Urban Management Act 2004 ss III(9)(h) and V(46)(h).
ResearchGate has not been able to resolve any citations for this publication.
Sports and Cultural Affairs Act 1993/1994 ss 4 and 6(b); Ministry of Women Affairs Act
  • Youth
Youth, Sports and Cultural Affairs Act 1993/1994 ss 4 and 6(b); Ministry of Women Affairs Act 1990 s
Foundation Act 1991 ss 3-4; Ministry of Natural Resources, Environment and Meteorology Policy Statement 'National Heritage Conservation Policy
  • Robert Louis Stevenson
Robert Louis Stevenson Foundation Act 1991 ss 3-4; Ministry of Natural Resources, Environment and Meteorology Policy Statement 'National Heritage Conservation Policy' (2004);
  • Mesc Corporate Plan
MESC Corporate Plan, 2018, Culture Division.