Saturday, 19 May 2012

Some Land Tenure Issues in Post-Conflict East Timor

Original Citation: 2006 ETLJ 1  Some Land Tenure Issues in Post-Conflict East Timor

Author: Warren L. Wright BA LLB (former UNTAET Property Rights Advisor 2000-2002)

East Timor, like all post-conflict countries, faces unique land tenure issues as it seeks to reconstruct. The most immediate land tenure problem concerns refugees and displaced persons. Often, such groups have historical and religious ties to the land from which they have been displaced and the loss of their land has profound economic and social impacts. They need secure land tenure to rebuild their lives. Access to land where the tenure is legitimate and stable is a precondition to the resumption of economic, social and political activities. It is also the key to personal security for those displaced and traumatised by the conflict.

The land tenure agenda in relation to the resettlement of refugees must also take account of residual social conflict. Post-conflict societies tend to remain polarised for a period of time with sections of the population mistrusting and fearing other sections of the population. The hostilities during the conflict in East Timor between pro-independence supporters and pro-Indonesia supporters will not disappear immediately. This complicates the land tenure and land allocation problems because even if there are stable tenures to be given to resettled refugees, pro-Indonesian East Timorese who are still in East Timor could not be resettled in regions where independence supporters live.

In addition to the plight of internally displaced persons, the land tenure issue is compounded by the return of East Timorese refugees from Indonesia and by the fact that many in the civilian population who are not refugees have had their homes, businesses and villages destroyed in the aftermath of the referendum. They too will be competing for land along with the refugee population.

Once the typical disaster-related assistance is completed, attention in the post-conflict society will shift to democracy, governance and the rule of law. It is critical that land tenure issues be included as a priority issue in East Timor’s reconstruction in order to ensure a lasting civil peace and good governance through the just resolution of the many and difficult land tenure issues now facing East Timor.

UNTAET Land and Property Commission
The Land and Property Commission of UNTAET has the responsibility to deal with allocation, claims, records and environmental issues in respect of all land in East Timor. The immediate pressure on this Commission is to allocate public land and properties to institutions, UN agencies, diplomatic missions, non-government organisations and private businesses. It also has to deal with the occupation of public buildings. Land allocation, the occupation of public buildings and claims of ownership all require substantive legal bases which do not yet exist in East Timor.

One of the most pressing activities of reconstruction is the provision of housing but the resumption of agriculture, industry and foreign investment all require the resolution of this question if social and political conflicts are to be avoided. The determination and recording of land ownership should not be delayed.

There are several categories of land whose ownership must be determined in a lawful way. Some examples are:

Land owned by the Indonesian state, the military and public officials;

Land owned by Indonesians who left East Timor and who have no prospect of return;

Land owned by East Timorese who left East Timor, either unilaterally or under forced deportation, who:

- have returned,

- who have disappeared following deportation or departure;

- who have not returned but whose identity is known;

- who have not returned and whose identity is unknown;

Land owned by Indonesian businesses which have no prospect of return to Indonesia;

Land owned by Indonesian businesses who intend to return to East Timor;

Land owned by East Timorese who were killed during the transition to independence (those who have relative and those who have no relatives);

Land owned by East Timorese whose pre-existing rights were not acknowledged by the Indonesian state which granted new Indonesian rights to either Indonesians or other East Timorese;

Land owned by non-Indonesian foreigners who intend to return;

Land owned by non-Indonesian foreigners who do not intend to return; and

Any land under possession by persons other than its documentary or customary owners.

Policy Settlement
The resolution of land tenure issues will be effected in a comprehensive way. The commencement of any comprehensive solution is policy settlement. East Timor must decide, having regard to the causes and effects of the recent conflict and its colonial history, on the fundamental principles and policies on land tenure and land use. The two basic questions which must be answered are: what land tenures shall exist and who shall own them.

Related policy issues include land redistribution, land use, the relationship between customary land law and the positive land law of the new East Timorese state, the role of the State in relation to land and what to do with the land of former Indonesian officials, military and other Indonesian citizens who have fled East Timor and who have no prospect of return. Land which was misappropriated by the Indonesian authorities from local East Timorese and granted with Indonesian land rights to either Indonesian migrants or local supporters also needs special attention.

Enactment of Legislation
The short-term priorities which have been identified for sustainable economic recovery in East Timor include the construction of the necessary legal and regulatory framework. Technical assistance will be required to develop transparent rules for the functioning of the private sector in East Timor including the land law for the new State. (See World Bank Draft summary Report of the Joint Assessment Mission to East Timor Darwin Australia 15 November 1999)

Once the policy debate has been settled and the broad outlines of land tenure rights and obligations have been determined, the next step is the drafting and enactment of laws which express the results of the policy debate and clearly specify the nature of the land tenures which are permitted by law and the rights and obligations of individuals and the State in relation to land.

It is historically the case that a major revision of the law is required to reflect the new social, political and economic realities in post-conflict nations. The history of land law in East Timor which resulted from four and one-half centuries of European colonisation and the twenty-five years of brutal Indonesian occupation compels the substantive and urgent revision of the applicable land law in East Timor. By its unlawful annexation of East Timor in 1976, Indonesia purported to apply all Indonesian laws and regulations in East Timor. In 1991, Indonesia enacted Government Regulation No 18 of 1991 by which all land rights which existed in East Timor under the Portuguese legislation were converted into the Indonesian statutory land rights. A thorough review of both Portuguese and Indonesian land law is a necessary part of East Timor’s legal framework reconstruction

Influence of International Law
The land law revision will take account of contemporary international law. Certain principles of international law apply in post-conflict situations. For example, refugees should have the right to return to their land and if they choose not to do so, they shall have the right to compensation.

Similarly, the position of the new East Timorese State in relation to the land within its jurisdiction also requires determination. Some questions can be answered be reference to public international law. If a state acquires all of the territory of another state, it succeeds to all the public property of that state (as distinct from property belonging to nationals or inhabitants) where ever that property is located. However, if a state merely loses some of its territory, the successor state succeeds to much less of the predecessor’s public property. Most of the public property situated in territory retained by the predecessor state continues to belong to the predecessor state while most of the public property situated in the transferred territory passes to the successor state. This means that land in East Timor which was “owned” by the Indonesian state automatically becomes the property of the new East Timorese state.

However, if the owner is a national of the predecessor state or of a third state, the successor state must comply with the minimum international standard for the treatment of aliens and expropriation must be for a public purpose and must be accompanied by compensation. This applicability of this latter rule might be excluded by the initial illegality of Indonesia’s annexation and so any rights acquired by non-Timorese Indonesians over land in East Timor during the annexation might therefore be disregarded.

If Indonesian law can be disregarded for the purposes of determining what rights on land exist and who owns those rights in post-independence East Timor, then the former colonial land law or the indigenous land law must apply for there can be no vacuum. But if that is the case, then careful attention would have to be given to the ownership of land which was granted or confirmed by the Indonesian state during its stay in East Timor. What is to occur where the rights of local East Timorese were ignored by the Indonesian state when it purported to grant new Indonesian rights over land in East Timor. Are all grants of land by the Indonesian State invalid? If such rights are invalid, will the land be returned to its former East Timorese owners or will the new East Timorese State assume ownership?

Some further assistance can be gained from public international law to resolve the questions surrounding the issue of private property when there is a succession of a new state to a predecessor state’s territory. Private property rights do not lapse when territory is transferred. If the successor State subsequently intends to acquire privately owned property in the territory which it has acquired, the extent of its power depends on the nationality of the owner. If the owner has or has acquired the nationality of the successor state, the successor state’s right to expropriate his property is unlimited under customary international law (although it might be limited by treaties on human rights).

However, if the owner is a national of the predecessor state or of a third state, the successor state must comply with the minimum international standard for the treatment of aliens and expropriation must be for a public purpose and must be accompanied by compensation. This applicability of this latter rule might be excluded by the initial illegality of Indonesia’s annexation and so any rights acquired by non-Timorese Indonesians over land in East Timor during the annexation might therefore be disregarded.

Private Property or State Control
Another central question is whether the new nation will entrench a free-enterprise and a private property-based economic structure in which private rights to land are absolute and form the basis of personal and social wealth or whether there is no place for absolute property rights and the state rather than the market is to be the land allocator. This latter alternative will merely replicate the extensive state control exercised by the Indonesian state over land in Indonesia where private rights on land are not secure from state intervention, termination and reallocation. The balance between the role of the State and the role of private property will have to be determined.

Institutional and Administrative Framework
About 70% of the land records in East Timor were destroyed during the post-referendum violence. East Timor must construct a new land management system to surpass both the Portuguese colonial system and the Indonesian system neither of which dealt justly with land and land ownership in East Timor.

Once the nature of the tenure system and other policy matters have been determined, legislation is also required to establish institutions for the conveyance and confirmation of title, its registration, surveying, administration of the land ownership record generally and the resolution of disputes over land ownership.

During the Indonesian occupation, the Indonesian National Land Agency was extended to East Timor as the land administration authority responsible for the registration of land right ownership and the granting of new rights on State land. A new land right registration authority needs to be constituted replace that agency and to create and maintain a new record of the ownership land interests in East Timor, to redistribute land and to implement the new land laws.

Institutions for the resolution of the inevitable disputes which will arise in relation to the reclaiming, redistribution and reallocation of East Timor’s land resources will also be necessary. Special judicial bodies in the form of land commissions will be required. The staffing, duties, powers and responsibilities of such commissions all need legislative definition.

Role of the International Community in the Management of Post-Conflict Land Tenure Issues
Bilateral and multilateral donors play an increasing role in reconstruction in post-conflict societies. However, a critical omission from international assistance towards reconstruction and political rehabilitation has been the omission to understand that a comprehensive land tenure agenda has profound economic and political benefits which are indispensable to reconstruction.

Important policy questions such as the nature of any land ownership registration system – whether it is to be positive or negative; whether the State provides an indemnity for registered interests, how registered interests are to be conveyed and mortgaged, public access to land ownership record, the land record maintenance system, the application of technology, evidence and limitation laws will all need to be considered in the land tenure system construction,

Technical assistance can be procured from the international community to assist in the development of land tenure policies, the preparation and drafting of land legislation, technology transfer, human resource development, land records creation and maintenance and general support for the entire land reform and land tenure agenda. The knowledge and experience in land law legislation and reform, land records maintenance, land policy development and land administration is available from land registration authorities operating in advanced market economies. Many of these authorities have a history of providing technical assistance in the implementation of large-scale land ownership registration projects.

Warren L. Wright BA LLB
13 February 2000

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