The East Timor Land Law Program: Four Years On - Still No Land Law

TLLLPIC 23 June 2010 DILI - The USAID Land Law Program in East Timor produced draft legislation 4 years ago this month and there is still no land law in East Timor.

There has now been more than a decade for reforms to be made to the land law in East Timor but successive governments have failed to come to terms with the most complex of social problems in this country: land law and policy concerning the indigenous and colonial land rights systems that have operated in this jurisdiction over the last 4 centuries of its recorded history and the violent and unsettled land disputes that are largely the result of the colonial occupations.

This social problem - which ultimately stems from uncertainty surrounding land ownership and the lack of an effective, peaceful and just dispute resolution mechanism to deal with the multitude of land conflicts - is not just a matter of the technicalities of legislative drafting but revolves around more complicated social, political and economic exigencies.

This uncertainty erodes the integrity of the civil peace and economic development and the longer the government sticks its head in the sand about land problems, the more serious and destabilising these problems will become.

The following is a report from the East Timor Legal Information Site legal news archive from June 2006 about the East Timor Land Law Program which to date has failed to provide any properly informed framework for the articulation of the requisite policies and laws - notwithstanding considerable donor aid and the mobilisation of numerous international experts.
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02 JUNE 2006 USAID Land Law Program II East Timor: Final Report Published - The final report on the USAID-funded East Timor Land Law Program has been published. The Land Law Program, implemented was undertaken by the the Ministry of Justice through the National Directorate of Land and Property.

"On the legislative drafting front, LLP II worked with government and prepared the main land bill entitled Juridical Regime of Immovable Property - Part III: Property and Transfer Systems, Land Registration, Pre-Existing Rights and Title Restitution. This bill addresses the themes related to the new immovable property and land registration systems to be implemented in the future, the provisions for the resolution of land claims and title restitution of pre-existing freehold rights and the compliance with the Constitution by non-national claimants of land rights. Numerous work sessions with high-level government officials and a special committee designated for the review of the bill took place. Advocacy for the passage of the law was carried out to the fullest extent possible. The submission of the bill to the Council of Ministers is pending.

The law drafted previously by LLP II on Leasing between Private Parties was passed by Parliament. A draft decree-law for the regulation of illegal constructions and informal settlements was prepared and delivered to the Ministry of Justice. The first debate of the bill at the Council of Ministers took place in December 2005.

A bill on Land Taxation and Expropriation was also delivered to government in mid-March 2006 for the future debate of these matters and to be considered only after the main land bill is passed and the land registration system is fully functional. In addition, the DNTP Organic Law was drafted and accepted by the Ministry of Justice for consideration along with ministerial decrees on lease tender processes, contract preparation, and delegation of responsibilities by the Minister of Justice to DNTP."

Need to Reform Land Laws in East Timor

31/05/2010 Extract from Xanana Resist Against Indonesia Used Strategic Guerilla Warfare And To Develop The Country with PEDN .mpg

There is a need to reform land laws in order to attract capital investment and job creation in Timor-Leste. How ever as happening with the International community funded program of “Hari’i ita rain” has some negative impact of separation of the Timorese family. As it’s happened in a village in Camea, Dili during this week. Those brothers and Sisters have argued among them selves to get right to their parents land.

La'o Hamutuk on the draft Expropriation Law

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La'o Hamutuk has launched a new web page on the draft Expropriation Law at:
http://www.laohamutuk.org/Agri/land/10ExpropriationLaw.htm

Expropriation is a process through which the State can compel people to sell their property, to use it for public benefit. On 6 April the Government presented Parliament with a draft Expropriation Law as part of a "land package". Committee A is now reviewing the law.

In many countries expropriation is a source of conflict and rights violations. Many Timorese people lost their land to forcible expropriation during the Portuguese and Indonesian regimes, and these traumas leave deep scars. When expropriation is perceived to be unfair or arbitrary, communities will resent, rather than welcome, projects of genuine local benefit.

La'o Hamutuk and many others believe Timor-Leste needs to approach expropriation carefully. It should only be done rarely, when every alternative is exhausted. The draft law has too few safeguards to prevent the State unfairly taking people's land.

The Ministry of Justice did not consult the public on this law before presenting it to Parliament. We hope that Parliament will send this law back to the Ministry of Justice to conduct a meaningful public consultation that can determine what Timorese people believe is a fair process for expropriation.

The web page outlines the expropriation process described in the draft law. It also suggests safeguards that could be explored further through a government public consultation process.

We welcome further documents, analysis and commentary from all sources.

See also Rede ba Rai (East Timor Land Network) Statement on the Expropriation Law
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La'o Hamutuk - The Timor-Leste Institute for Development Monitoring and Analysis
1/1a Rua Mozambique, Farol, Dili
Mob: +670 730 2439
Office: +670 332 5013
Web: www.laohamutuk.org

Rede ba Rai (East Timor Land Network) Statement on the Expropriation Law

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Two weeks ago the government approved and sent to parliament 3 laws that will have a huge impact on the people of Timor-Leste’s land rights. The first of these laws, the Lei de Terras, was the product of much work and debate and 5 months of public consultation. The other two, The Property Fund Law (Lei Fundo Financeiro Imobiliario) and the Expropriation Law (Lei Expropriacoes) were written by law firms[1] and (unlike the Lei de Terras) were not opened for public consultation by the Minister of Justice. They have not yet been translated to Tetun.

In particular the Expropriation Law (Lei Expropriacoes) which establishes when and how the state can take peoples’ land will have a very significant impact on our rights and access to land.

What is Expropriation?

Expropriation is the process through which the state takes land in order to undertake developments in the public interest (for example to build roads, ports or hospitals). Almost all countries have some sort of process for doing this, however the act of evicting a person, family or a community from their home and taking their land is huge incursion on their rights and should only be allowed to happen in exceptional circumstances where there are no alternatives, and where the development is necessary ‘for the public interest’.

The definition of ‘public interest’ during state expropriation of land is one of the world’s most contentious land issues. If we define ‘public interest’ very broadly we give the government huge power to take land. Considering this, in order to prevent conflict and create a law that can contribute to creating peace and strengthening development it is important that there is deep consultation. If we give a wide definition to this concept of public interest we give the state strong powers to take land.

In many parts of the world we can see examples of powerful states evicting the population arbitrarily in the name of economic development. Cambodian Law for example states that ‘no person may be deprived of his ownership unless it is in the public interest’ and yet, in Cambodia over 150,000 people live everyday under the threat of eviction for the creation of luxury housing, hotels, shopping malls etc. In a recent case over 4,200 families in Phnom Penh lost their land when they were evicted in order to make way for state sponsored private economic development.

What does the draft Expropriation Law say?

Timor-Leste’s new Expropriation Law does not give any definition to this concept of ‘public interest’. It gives the government almost no limitations therefore allowing it to determine cases arbitrarily on a political basis what is in the public interest.

Under this law the government could decide that clearing communities from their lands in order to give large tracts of land to companies like SAPT or P.T. Salazar is in the public interest. Or that evicting people from their homes in order to allow foreign companies to come and build hotels is also within the public interest.

Expropriation of land and people’s homes should never happen arbitrarily. We need a law that establishes not only sufficient compensation but also lays down sufficient protections against unjust, arbitrary, corrupt or forced expropriation of land. We need a law which allows the state to expropriate land only in exceptional circumstances and where no other alternatives exist. We need a law that guarantees the role of the people in decisions and consultations about expropriation.

How to ensure fair and just policies on expropriation

A crucial part of writing appropriate expropriation policies and rules is ensuring that marginal communities and those who are likely to be affected by expropriation are involved in their creation. Without their involvement in the process laws will favour the richer and more powerful groups in society.

§ This law was written with no consideration of the Timor-Leste context. It does not look at Timor’s historical complex relationship with expropriation, or how the realities of expropriation might affect the nation. We should not forget that conflict in 1975, 1999 and 2006 was all linked to land and the independence of land.

§ It was written undemocratically with no participation from the people on whom it will most impact. Expropriation of land affects most severely those living in poverty. Special efforts should have been made to ensure the participation of these groups in the creation of these laws. The law should look more specifically at providing protection to vulnerable land groups in Timor-Leste.

§ It was written in a language that our population cannot understand.

§ At no point have we been asked how and when we would feel that it would be justified for the state to take our lands.

Most importantly, we must ask why the Government is trying to sneak in this law as part of a package of transitional land laws? The Expropriation Law was sent to parliament at the same time as the new Lei de Terras. The Lei de Terras aims to resolve uncertainty over land claims in Timor-Leste, it is the product of significant debate and public consultation. It is very important that we consider these two laws as distinctly separate. The Lei de Terrasconsultation process which was carried out last year (June 2009 – November 2009) at no stage discussed or consulted with communities on the issue of expropriation.

Why no consultation?

Government representatives have said that expropriation is a very technical issue and that the population of Timor-Leste would not have the capacity to give opinions on these types of issues. This is not only inaccurate, but also seeks to justify the dilution of our rights of participation. Asking people when and how they feel it is justified for the state to take their land is not a complicated question.

§ If this issue is considered a technical and complicated issue, government, civil society and communities need to re-think their strategies for disseminating information and consulting on land rights and legal issues,

§ A lack of capacity to understand the issues does not negate the duty of government to allow participation in governance and legislative issues. In the case of the Expropriation Law the problem is not that there was insufficient or weak consultation, but that the public was not given any opportunity to access or contribute to the development of this law.

Recommendations

To S.E. Sra. Fernanda Borges the President of Commission A, the members of Commission A, and the Members of Parliament

We ask you as representatives of the people, to take into account the massive impact that this law will have on the rights of the people of Timor-Leste and to;

1. Consider the Expropriation Law as a law that is completely separate to the Lei de Terras,

2. Send the Expropriation Law back to the Ministry of Justice requesting them to carry out sufficiently deep, democratic and participative public consultation on this important issue

To S.E. Sr. Xanana Gusmao, the Prime Minister of Timor-Leste and S.E. Sra. Lucia Lobato, the Minister of Justice

We congratulate you on the public consultation process and subsequent approval of the Lei de Terras and ask you to look to the constructive experiences of the Lei de Terras consultation process, and to;

1. Acknowledge the important role that the people of Timor-Leste play in the creation and definition of our policies, laws and development path,

2. Guarantee and implement a public consultation process in relation to the Expropriation Law that will allow effective participation from the people of Timor-Leste

3. Guarantee the role of the public in the creation of future Land Policies and Laws, and in particular guarantee that all laws that will have a large impact on our land rights and access to land will undergo sufficient and substantial consultation.

To all partners, donors and actors within the justice sector of Timor-Leste

We ask you to follow the good examples laid down by current land sector actors and to commit to a renewed culture of consultation and participation, and to;

1. Emphasize the need for solutions that are specifically suited to the Timorese context,

2. Ensure that there is widespread co-operation, consultation and co-ordination between government institutions, organizations, civil societies and other stakeholders,

3. Guarantee their commitment to participatory and democratic approaches to legislation and policy creation.

The Timor-Leste land network is a group of 20 organisations working to protect land rights in Timor-Leste. Our vision is a nation where all people have land rights and access to land that is just and sustainable. Since 2001 we have been monitoring, researching and advocating on land issues. To find out more about Rede ba Rai, the Expropriation Law or other land issues please contact the secretariat of Rede ba Rai at Fundasaun Haburas +670 730 7800

[1]The Expropriation Law was written by Portuguese law firm Miranda.


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Land Issues Mentor
Rede ba Rai Timor-Leste (The Timor-Leste Land Network)
Fundasaun Haburas,
Rua Celestino da Silva,
Farol,
Dili,
Timor-Leste

+670 730 7800
+353 85 1461435
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Statementu Rede ba Rai kona-ba Lei ba Espropriasaun

Semana rua liubá governu sira mak approva no haruka ba parliament lei tolu(3) ne’ebe sei fó impaktu bo’ot ba povu Timor-Leste nian direitu ba rai. Lei primeiru, naran Lei de Terras, mak hakerek liu husi servisu no debát barak no liu husi konsultasaun publiku fulan 5. Lei rua seluk, ida kona-ba Fundu Propriedade (Lei Fundo Financeiro Imobiliariu) no ida kona-ba espropriasaun (Lei Expropriacoes)mak hakerek liu husi kompania avogadu sira[1] no Ministra Justisa la loke lei rua ne’e ba konsultasaun publiku, prosesu nebe hanesan ‘lei ba rai’ nian. Lei rua ne’e dezenvolve esklusivu liu no taka ba publiku, no sira seidauk tradus ba lian Tetun.

Liuliu Lei kona-ba Expropriasaun ne’ebe establese bainhira no oinsa estadu bele foti povu nian rai mak fó impaktu bo’ot ba ita nian direitu no asesu ba rai.

Saida mak Espropriasaun?

Espropriasaun mak prosesu ida liu husi estadu bele foti rai atu uza ba dezenvolve projetu ruma ba intereses publiku (ezemplu atu harii dalan, porto ka ospital sira). Normalmente nasaun hotu-hotu iha prosesu ida hodi halo ida ne’e. Maske ne’e atu hasai ema, familia ka komunidade ruma husi sira nian fatin ka atu foti sira nia rai mak iha jerál konsidera hanesan aksaun ida ne’ebe amiasa bo’ot ba sira nian direitu. Bele deit hasai ema husi sira nian rai iha kazus exesional, bainhira alternativu la iha, no bainhira dezenvolve projetu mak nesesidade ba intereses publiku.

Iha mondu hotu definisaun ba phrase ne’e ‘tuir intereses publiku’ mak assuntu ne’ebe hetan debát bo’ot. Definisaun ne’e bele iha interpretasaun la hanesan entre jerasaun sira nebe kaer ukun. Ho konsiderasaun ne’e mak hakarak husu atu iha debat klean nune bele evita konflitu nomo bele produs lei ida nebe bele ‘kontribui ba hari pas no hametin desenvolvimentu’. Se ita fó definisaun luan liu hodi interpreta katak interese publiku deit ba konseitu ne’e ita fó póde bo’ot ba estadu atu foti rai.

Iha nasaun barak ita bele hare’e estadu ho póder bo’ot hasai arbiru povu husi sira nia rai ho naran dezenvolvimentu ekonomiku. Lei Kambozia establese katak ‘la bele hadera ema sira nian direitu ba rai nebe la tuir interese publiku’ maske nune’e iha Kambozia liu ema 150,000 hela loro-loron ho amiasa duni-sai tamba estadu hakarak harii uma luxu, otels no sentru komersial sira. Foin dadaun iha kazu ida estadu mak hasai familia nain 4,200 ne’ebe hela iha Phnom Penh atu fó dalan ba dezenvolvimentu ekonomiku privadu patronisa husi estadu.

Ezbozu Lei Espropriasaun establese saida?

Timor-Leste nian Lei Espropriasaun foun la fó naran definisaun ida ba konseitu ‘intereses publiku’. Lei fó ba governu póder bo’ot kuaze laiha limitasaun atu halo determina kazu saida kona-ba asuntu rai ho deit base politika interese publiku.

Tuir lei ne’e katak governu bele determina atu hasai komunidade husi sira nian rai atu fó rai luan ba kompania hanesan SAPT ka P.T. Salazar mak tuir interese publiku. Estadu bele mos halo desizaun katak halo duni-sai ba ema husi sira nian uma atu husik kompania husi rai liur mai hari otel mak tuir intereses publiku nebe bele dehan atu hari kampo servisu.

Foti ema sira nian rai no uma nunka bele halo arbiru deit. Entaun ita presiza lei ida ne’ebe establese la’os deit hodi determina kompensasaun ne’ebe sufisiente maibe mos lei ida ne’ebe fó protesaun kontra espropriasaun ne’ebe la justu, ne’ebe arbiru deit, korupsi ka forsadu. Ita presiza lei ida ne’ebe husik estadu atu hasai ema husi sira nian rai iha kazu exsesional deit bainhira alternative la iha. Presiza lei ida ne’ebe garante povu sira nian knar halo desizaun no atu hetan konsultasaun kona-ba expropriacoes

Oinsa bele harii politika kona-ba espropriasaun ne’ebe justu?

Parte bo’ot hakerek politika no lei espropriasaun ne’ebe serve ba kontextu sosial, ekonomia, cultural no politika nian mak asegura katak komunidade kbiit-laek sira no ema ne’ebe ba oin hetan impaktu husi politika espropriasaun sira involve iha prosesu kria politika hirak ne’e. Se sira la involve iha prosesu hari politika sira ne’e, politika hali’is liu ba ema bo’ot no riku ne’ebe bele influensa maka’as liu prosesu.

§ Lei ida ne’e mak hakerek laiha konsiderasaun ba kontextu Timor-Leste nian? Lei ne’e la hare ba povu Timor sira nian istoria komplexu ho asuntu espropriasaun. Lei la hare oinsa espropriasaun iha tempu ukun rasik an bele impaktu ba nasaun nian. Keta haluha katak konflitu 1975, 1999, 2006 sira ne’e hotu iha ligasaun kona-ba rai no ukun ba rai.

§ Lei ne’e hakerek ho metodu ida nebe la’os demokratiku nolaho partisipasaun ida husi ema ne’ebe hetan impaktu bo’ot liu? Ema kbiit-laek sira no ema kiak hetan impaktu bo’ot liu bainhira iha espropriasaun. Entaun presiza esforsu spesifiku atu asegura sira nian partisipasaun iha prosesu hari lei no lei ne’e devia hare liu ba protesaun grupu rai kbiit-laek iha Timor-Leste. Oinsa ukun nain sira atu interpreta espektativa populasaun nian wainhira sira sei hetan ‘espropriasaun’ husi Estado?

§ Lei ne’e mak hakerek iha lian ne’ebe povu sira la bele komprende?

§ Governu la husu ba povu sira bainhira no oinsa bele justifika atu foti populasaun nia rai.

Importante liu, sosiedade sivil sira (Rede ba Rai) presija hetan informasaun husi Governu sira, no Ministra Justisa tamba sa sira koko atu la’o subasubar ho lei ida ne’e?Lei ne’e haruka ba Parlimentu tempu hanesan Lei de Terras? Lei de Terras mak hakerek atu rezolva konfusaun kona-ba se mak nain ba rai iha Timor-Leste, Lei de Terras mak hetan debate no konsiderasaun maka’as liu. Presiza duni rekonyese katak Lei rua sira ne’e mak ho moos ketak-ketak (la bele kahor). Prosesu konsultasaun Lei de Terras ne’ebe halo tinan kotuk nunka temi ka halo diskusaun kona-ba asuntu espropriasaun.

Presiza Konsultasaun

Representante Governu sira beibeik dehan katak assuntu espropriasaun mak assuntu ida tekniku liu, no dehan katak povu Timor-Leste nian la iha kapasidade atu fó hanoin kona-ba assuntu hanesan ne’e. Ne’e la’os deit argumentasaun ne’ebe sala maibe mos liafuan ne’e koko atu justifika Governu sira nian perspektiva politika ba hamihis ba direitu partisipasaun povu nian. Maibe atu husuba ema bainhira no oinsa sira senti estadu bele foti sira nian rai maka pergunta simples no klaru, la’os asuntu ‘tekniku’,

§ Se ita senti katak konseitu ruma mak komplexu, Governu, sosiedade sivil no komunidade sira presiza hanoin fali ba ita nian stratejia fahe informasaun, eksplika konseitu no halo konsultasaunn kona-ba assuntu lei no rai.

§ Kuran kapasidade la signifika katak governu iha direitu atu taka prosesu ba publiku. Governu iha nafatin dever atu garante partisipasaun iha assuntu governasaun ba nasaun nian.Problema ho Lei Espropriasaun ne’e la’os katak konsultasaun la sufisiente ka la forsa, problema mak ita la simu oportunidade ida atu asesu Lei ne’e no fó ita nian kontribuisaun iha prosesu desenvolvimentu lei ne’e.

Rekomendasaun Sira

Bodik ba S.E. Sra. Fernanda Borges, Presidenta Komisaun A, membru Komisaun A sira no Membru Parliamentu

Ami husu ba ita bo’ot sira hanesan representante povu nian atu hare’e ba impaktu bo’ot husi lei ne’e ba ita nian direitu no atu;

1. Konsidera Lei Espropriasaun ne’e hanesan assuntu ida ne’ebe ketak (labele kahor) ho Lei de Terras transitoriu,

2. Haruka fali ba Ministra Justisa Lei Espropriasaun no husu ba sira atu halo konsultasaun ida ne’ebe klean, demokratiku, no partisipativu ba asuntu importante ne’e.

Bodik ba S.E. Sr. Xanana Gusmao, Primeiru Ministru Timor-Leste no S.E. Sra. Lucia Lobato, Ministra Justisa

Ami hakarak hato’o ami nian parabems kona-ba konsultasaun publiku maka’as no aprovasaun Lei de Terras. Ami husu ba ita bo’ot sira atu hare’e ba esperiensia konstruktivu prosesu ne’e no nune bele;

1. Rekonyese knar importante povu Timor-Leste iha prosesu harii no fó definasaun ba politika, lei no dalan dezenvolvimentu Timor nian,

2. Garante no implementa prosesu konsultasaun maka’as kona-ba Lei Espropriasaun ne’ebe fó dalan efetivu ba partisipasaun povu Timor nian,

3. Garante povu sira nian knar ba oin iha prosesu harii lei no politika rai nian no garante katak Lei sira hotu ne’ebe impaktu ba povu sira nia direitu rai sei hetan konsultasaun nebe klean.

Ba parseiru, doadores no ema seluk servisu ho sector justisa iha Timor-Leste

Ami husu ba ita bo’ot sira atu tuir ezemplu diak ne’ebe bele agora dadaun hare’e iha parte balun setor rai, no atu haburas komitmentu ba kultura foun konsultativu no partisipativu, no mos atu bele;

1. Fó enfaze atu buka solusaun sira ne’ebe tuir kontextu Timor nian,

2. Asegura katak iha kooperasaun, konsultasaun, no koordinasaun entre ita bo’ot sira, instituisaun governu, sosiedade sivil, povu Timor no makletak sira seluk,

3. Garante ita bo’ot sira nian komitmentu ba prosesu kria politka no lejislasaun ne’ebe partisipativu duni no demokratiku.

Rede ba Rai mak grupu organizasaun local, nasional no internasional ne’ebe servisu atu proteje direitu ba rai iha Timor-Leste. Ita nian vizaun mak povu Timor-Leste ne’ebe moris nafatin ho direitu no asesu ba rai ne’ebe justu no sustantivel. Husi tinan 2001 ita halo monitorizasaun, peskiza no advokasia kona-ba asuntu rai. Atu hetan informasaun liu kona-ba Rede ba Rai, Lei Espropriasaun ka asuntu rai seluk favor ida kontaktu sekretariadu Rede ba Rai liu husi telemovel +670 7307800.

[1] Ministra mak emprega kompania avogadu Portugues Miranda atu hakerek Lei Espropriasaun.

Customary Land in East Timor: A Lesson from Malaysia

Court Voids Malaysian Palm Oil Giant's Leases on Native Lands MIRI, Sarawak, Malaysia, April 1, 2010 (ENS) - A native community on the Tinjar River in the Malaysian part of Borneo has won an important legal battle against the Sarawak state government and a subsidiary of IOI, one of the world's largest palm oil companies.

Twelve years after the natives' class action lawsuit was filed, the Miri High Court Wednesday declared leases of Kayan native customary lands "null and void" because they had been issued by the Sarawak state government to IOI Pelita in an illegal and unconstitutional manner.

Successful Kayan native plaintiffs and their lawyer Harrison Ngau, center, celebrate outside the courthouse in Miri, Sarawak. March 31, 2010. (Photo courtesy BRIMAS)

The court declared that the five plaintiffs who represented their village of Long Teran Kanan in the class action case possess native customary rights over their native customary land area, both on the leased lands and beyond them "according to the plaintiffs' communal boundary."

The court also found that issuance of the leases constitutes a violation of the rights of the plaintiffs to their property which is the source of their livelihood.

The court ruled that the company and its agents "are trespassing" over the land of the plaintiffs and awarded both exemplary and aggravated damages to the Long Teran Kanan native community. Any damages and losses suffered by the plaintiffs will be assessed by the Deputy Registrar of the High Court at a date to be fixed.

Outside the courthouse plaintiff Emang Jau said he was very happy with the judgement. He urged the state government not to appeal the High Court decision.

Jau said, "Previous and current ministers, elected representatives and government officers have encouraged us to develop our land and not leave it idle. We have received a lot of assistance from the government when our previous longhouse was burnt twice and also from subsidies to plant rubber, cocoa and paddy [rice]. So it is unfair for the government to accuse us of not having any rights at all."

Lah Anyie, the first plaintiff and also the headman for Long Teran Kanan asked, "Why does the company and the government accuse us of being squatters when our village is officially recognized by the government as a legitimate village?"

The Court decision also discredits the so-called Roundtable for Sustainable Palm Oil, which, according to IOI, had found in a probe that the company "had acted responsibly for the management of land in Sarawak."

Oil palm plantation in Sarawak (Photo by Anjalil)

IOI, a Malaysian palm oil producer serving markets in 65 countries, is a founding member of the Roundtable. IOI Pelita is its subsidiary.

Nongovernmental organizations that have supported this native community and others in their fight for native customary rights and land rights are urging the Sarawak state government not to appeal the High Court's ruling.

The Borneo Resources Institute Malaysia says the Sarawak government should let the ruling stand. "Even though the government has a right to appeal, they have to take into account their priorities to the people, espoused by the slogan, 'Peoples First, Performance Now,'" the institute said in a statement Wednesday.

The Bruno Manser Fund, based in Switzerland, said today that it welcomes the Miri High Court decision and "expects IOI to stop its jungle clearance activities and move out of the disputed lands in the Tinjar region with immediate effect."

Last December, a BBC News investigation found that vast tracts of former rainforest were being bulldozed in the disputed IOI operations area. BBC reporters documented "a scene of absolute devastation: a vast scar on the landscape."

On March 15, Friends of the Earth Europe and its Dutch branch Milieudefensie issued a report presenting evidence that IOI was responsible for large-scale illegal and unsustainable activities in the Indonesian part of Borneo.

The report exposes the illegal activities of the IOI Group and shows that the increasing demand in Europe for palm oil in food and biofuels is leading to deforestation, breaches of environmental law and land conflicts in Asia.

"The picture that arises from our investigation differs considerably to the promise of sustainable palm oil that is being presented by the IOI Corporation," Friends of the Earth states in its report. "As IOI is expanding its plantations to capitalise on the growing market opportunities for palm oil, it is failing ... to live up to the standards it has subscribed to."

The IOI Group responded that its own investigation into these allegations found that "Milieudefensie's field research had been highly selective and limited, and that several incidents on which allegations were based were incorrectly reported. The investigation also concluded that no land conflicts have occurred, nor have any laws or RSPO regulations been violated."

"IOI Corporation is also not involved in any open burning activities and, as part of its zero-burning policy, is monitoring and preventing third-party burning activities on its concessions," the company said in a statement March 25.

"IOI Corporation is determined to demonstrate its commitment to its sustainability goals and its compliance with legal regulations and RSPO Principles and Criteria by openly providing concerned stakeholders with insight into company field documents and procedures," the company said.

Copyright Environment News Service (ENS) 2010. All rights reserved.

Ita Nia Rai (Our Land) Project Information Brochure

Ita Nia Rai (Our Land) Project Information Brochure

New East Timor "Our Land" Project Website

The Ita Nia Rai (Our Land) Project English Tetum (Tetum language: Ita: collective inclusive pronoun; nia: possessive case; rai: land)

This 5-year, US$10 million Project will support the Government of Timor-Leste and build on past USAID Land Law Programs. Its objectives include: Strengthening land policy, law and regulations; Assisting with survey, registration and titling of land; Implementing land administration and information systems; Developing dispute resolution mechanisms; and Increasing public awareness of land issues.

The Project comprises 5 tasks in the pursuit of the project objectives noted above:

1. Public Information and Awareness / Increased Transparency;
2. Land Policy Laws and Implementing Regula­tions;
3. Support to a National Land Commission (NLC);
4. Land Administration (Cadastral, Registration and Land Titling System); and,
5. Dispute Resolution, Mediation and Processes for Competing Claims to Land.

Community Land in East Timor: A Lesson from Paraguay

ETLJB 23/02/2010 1856hrs AEST SYDNEY - As the government of East Timor, with the support of the United States and Australian governments  as well as the World Bank, drafts its law on community lands in East Timor, community lands are already being alienated by the government to investors even though there are no clear legal protections for community lands or the local groups that occupy them and claim them as their ancestral legacy.

In the interests of traditional local communities in East Timor who have not been properly represented in the policy formulation or the drafting of the legislation, it is instructive to examine recent experiences of traditional communities in other countries.

As in East Timor, the government of Paraguay also grants rights and concessions over community lands without there being a protective legal framework that seeks to ensure the integrity of communal land rights as against both the state and outsiders. Nor is there any apparent policy from the government to shore up its traditional communities or act in their interests. This approach causes serious social problems to arise that have the potential to spiral into violence.

The initial draft of the law on the special regime for the determination of ownership of immovable property in East Timor made no mention whatever of the legal status of communal land rights or compensation for the appropriation of the land through the agency of the state to private capital. Instead, it left the matter entirely within the unrestrained discretionary powers of the executive (and, subject, ultimately, therefore, to the arbitrary decisions of the reigning political group and the economic elite).

A third draft of the law has made significant progress on the provisions pertaining to community lands in East Timor but there remain several problems which are yet to be addressed.

It is not too late for East Timor to act in accordance with international laws, conventions and declarations in relation to its traditional indigenous communities and ensure an appropriate regulatory framework.

The third draft may be read here on ETLJB.
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From Global Voices Online - Paraguay: Indigenous Group Sprayed Aerially with Pesticides Thursday, November 12th, 2009 @ 23:02 UTC by Eduardo Avila - In eastern Paraguay, 217 members of the Ava Guaraní indigenous community recently came down with health symptoms that include nausea and headaches. It is believed that these individuals became sick as a result of intentional aerial spraying with pesticide, after they refused to vacate their ancestral lands.

Governmental officials confirm that parts of the indigenous group's land located in the Itakyry district in the Department of Alto Parana had been sprayed where no crops are present [es]. Many of the signs point to Brazilian soy growers as those responsible for the spraying, in part because the indigenous community's land is valuable for the crop and that they had been in a dispute with the Ava Guaraní over the ownership of approximately 3,000 hectares [es], according to the blog Interparaguay [es].

Jose Angel Lopez Barrios of Bienvenidos! [es] describes the isolated community where the incident took place.

Itakyry is one of the districts of the Department of Alto Parana, located 450 kilometers from the capital city of Asuncion. One arrives by unpaved roads, its heyday was during the yerba mate cultivation. This ended after 100 years, making way for the soy cultivation during recent times.

It is demand for soybeans, and the rising prices, which makes land suitable for this crop at such a high premium. Some of this land is located on ancestral lands of indigenous communities, such as the Guaraní. Blogger Carlos Rodríguez of Rescatar [es] does not think that the spraying incident against the indigenous group is an isolated incident, and calls the act “genocide”:

There was a time in Paraguay when the aboriginals were not considered human beings. They were hunted like animals and their offspring collected like trophies.

Some of their land was appropriated with bullets and blood, and as the indigenous did not go to the institutions in charge of of providing titles to the lands that always belonged to them, the white man did go to these institutions, it makes no sense that the rightful owners of these lands are now the “invaders.”

They continue to be treated like animals. It is only this way that one can understand how the soy producers can send fumigation planes to spray poison on top of them, which was proven by the Ministry of Health, which is now helping the indigenous poisoned by pesticides.

Lopez Barrios is also ashamed of the history of mistreatment of indigenous communities in Paraguay [es]. As a descendant of emigrants to the country, he writes that the incident “makes him feel like returning to Europe ….but really … prefers that the exploiters leave.”

To resent an indigenous group with more than 38 centuries in existence on their own and true territory, does not seem appropriate to me…. If we do not respect our elders, our days on earth will be shortened, and if greed is placed ahead of any other virtue, we will fall hopelessly…..

Timor-Leste Draft Law for a Special Regime for the Determination of Ownership of Immovable Property Version 3

East Timor Draft Land Law Version 3    

Community land in East Timor - A New Tragedy of the Commons?

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ETLJB 21 February 2010 SYDNEY 1626hrs AEST - ETLJB has previously published analyses pointing out certain fundamental deficiencies in draft land law’s provisions pertaining to indigenous land tenure systems in East Timor. To reiterate briefly, the draft would confer no juridical status on either customary land tenure systems or the individualised traditional rights that have emerged from those systems; it confers no juridical status on the customary managers of the land and makes no provision for just compensation for the diminution or extinction of customary land rights. Furthermore, the draft land law would impose a mere obligation on the government "to consult" with local communities when it is making decisions about the use or alienation of the land in their territory. The protection of community lands is left entirely in the hands of the executive.

As East Timor witnessed when it was part of Indonesia, customary peoples and their lands were the subject of exploitation, dispossession and destruction under a legal regime that paid no respect to the indigenous land systems. Similarly, in Australia, during the colonisation process, aboriginal lands were systematically appropriated without compensation and granted to the invading Europeans; leaving hundreds of indigenous communities in oblivion. In fact, the aboriginal people were the subject of a land-induced genocide of the most horrifying dimensions; leaving “a legacy of unutterable national shame”, as the High Court of Australia stated in the history-shattering case of Mabo v The State of Queensland (No 2) that overturned centuries of legal lies and restored the rightful juridical status of indigenous lands in that country. It is to such extremes that failures on land law and policy inexorably lead - to epic suffering, grief and loss; something of which the people of East Timor have had far more than their fair share.

One of the constitutive causes of the law has, at least in Western jurisprudence, been to define and protect property rights since they are essential to individual liberty, economic and political autonomy as well as social development. Land rights are a most quintessential vector in the entrenchment and maintenance of the relationships of power and organisation in all human communities.

When the law fails in this core function, it has failed the most central tenets of democracy and capitalism and injustices and conflicts arise which have the potential to destabilise the civil peace. East Timor policy-makers, administrators and researchers know all too well of the potentiality for violence, chaos and disorder when land issues are not properly managed.

Regrettably, the stage has already been set in East Timor for further problems that are rooted in the complexities of land law and policy; and in particular those relating to indigenous land tenure systems confronting intrusions from both domestic and foreign capital as well as the state.

In a recent article (Justice for the Poor Briefing Note November 2009 Volume 3 Issue 3 entitled Contracts, Land Tenure and Rural Development in Timor-Leste) Rod Nixon refers to some examples of the granting of rights and concessions over community lands in East Timor which have already taken place even though the draft land law is yet to be enacted and even while there is no other substantive legal regulation of community lands in that country.

Nixon recites 2005 survey data that shows that about 3% of rural land in Timor-Leste appears to have been alienated from customary tenure. Since then, of course, there have been several significant interventions by the state granting rights over community lands to private capital.

Nixon notes that other cases  include the 12 hectare East Petroleum site in Liquica and the 2008 Memorandum of Understanding between the GoTL (Government of East Timor) and GTLeste Biotech concerning a renewable 50 year lease for 100,000 hectares 'of unproductive land'. Another case is a lease issued by the GoTL to Timor Global in 2005 for 3000 hectares of coffee plantation at Fatubesi (Ermera district).

Nixon’s observations on this latter case are that “[a]lthough formally state land, Timor Global discovered that the lease provided an insufficient basis for the company to commence crop improvement and management activities. Before the company could begin work, it had to negotiate with community leaders and agree to provide benefits including employment opportunities and security arrangements. Timor Global has now commenced work on a 60 hectare section and employs around 80 members of the local community (including 30 said to have connections to the resistance movement)."

Timor Global is also active in Baucau district where the company has leased 1,500 hectares of community land and is introducing intensive cultivation methods on sites in three villages totalling up to 100 hectares.

Nixon tells us nothing of the compensation, if any, that had to be paid to the community (or whether that was distributed in a fair way to the community) in these processes. But past experience informs us that when a customary community is dealing with private capital which has the power and, if necessary, the force of the state standing behind it, one thing is certain: that the negotiation process is not adequate nor is the compensation just.

There have been other cases of problems being caused by an inappropriate approach to customary land tenure systems in East Timor. And one which highlights the dangers of conflict and violence threatening to break out from the mismanagement of the problem is the resumption of community lands for the Metinaro base of the East Timor Defence Forces. This appropriation occurred during the UNTAET period and was personally witnessed by the present writer. When the land was being surveyed by cadastral offices of the National Directorate of Land and Property (DNTP), local men appeared armed with weapons. The Defence Force itself had to provide security and oversee the process. Armed military personnel attended the handover of compensation which was some rice. Some rice for the land that this community had occupied since time immemorial. The suppression of resistance to the unjust taking of community lands works for a while but social discontent simmers away because of the injustice thereby rendered.

It is worth noting Nixon’s comment that “[w]hereas the GoTL, with USAID support, is addressing the critical area of property rights in urban and peri-urban areas through the Ita Nia Rai program, this initiative will not cover the vast amount of the country over which customary systems of authority predominate.”

Ultimately, this is a misrepresentation on both counts that needs to be corrected.

Firstly, given the criticisms of the draft land law that has been produced under the Ita Nia Rai program - and not just those in relation to the provisions on community land but the broader questions of whether possession or restitution is the ultimate goal of the draft as well as the appalling lack of adequate or meaningful public consultations on the draft, the question remains whether this draft is really going to “address the critical area of property rights” or whether it is something more insidious than it appears.

Secondly, it is wrong to state that the land law program “will not cover the vast amount of the country over which customary systems of authority predominate” because the draft land law clearly would impact on and would directly regulate (or purport to regulate) community land. It does this in the manner described at the beginning of this analysis and in the articles recited below, by ignoring the substantive legal and policy issues and subjecting community land to the pure will of the executive; without recourse to judicial review of government decisions that affect those lands. The draft authorises – poorly and improperly - the government to make decisions on the use and occupation of community lands (Article 26(2)), and in that decision-making process, the government needs only to consult with the community. No mention of the legal status of those rights. No mention of compensation.

Nixon appears to endorse this position by reciting other authorities that suggest “that state-managed negotiation frameworks for accessing land for development can play a role in both facilitating economic development and reducing the risk of land conflict.” But such a state-dominated system only works in a democratic rather than an autocratic way and without consequential disputes and conficts if the extant legal rights of the local communities over their lands are already enshrined in the law and there is a separation-of-powers inspired judicial review regime simultaneously in place. In East Timor, this is not yet the case. And it seems unlikely that it is intended to be the case.

Nixon’s obscurantism and obfuscations should not go unnoticed by those interested in the development of a rational, informed and experiential policy and legal regulatory framework for community land in East Timor. It is unfortunate that such an important debate is articulated in such a superficial way.

Warren L. Wright BA LLB

(former UNTAET Property Rights Adviser)

See further:

Special Regime for the Determination of Ownership of Immovable Property

Negative Impact of Draft Land Law on Customary Land Tenure Systems in East Timor

Draft land law provisions on land rights for foreigners in East Timor will smother development 

East Timor Land Rights: Restitution Not Possession - A Comment on the Draft Land Law

2004 ETLJ 10 Some Observations on the Report on Research Findings and Policy Recommendations for a Legal Framework for Land Dispute Mediation Prepared by the Timor Leste Land Law Program 08 April 2004

East Timor Draft Land Law Public Consultations Commence