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Land Issues in a Newly Independent East Timor
Daniel Fitzpatrick
Law & Bills Digest Group
6 February 2001
Contents
Major
Issues
Introduction
The Local Context
UNTAET and the Institutions of Government
Land Claims
Colonial Dispossession and Claims
Based on Traditional Rights
Restitution
Land Reform
Restitution and Land Reform
Zones
Claims Based on Portuguese Titles
Claims Based on Indonesian Titles
Claims Based on Non-Traditional Long
Term Occupation
Land Administration
Re-establishing the Land Registry
Provision of Funding and Institutional
Development
The Legal Status of Registered Titles
Extending the Land Register
Conflict Resolution
Building Bridges Between Tradition
and the State
Developing a System for Dispute
resolution
Economic Development
Major Projects
Sustainable and Equitable Development
Conclusion
Endnotes
Major
Issues
Recent events in the Pacific have highlighted the importance
of land to postcolonial social stability. Currently, land issues in East
Timor contain significant potential for political conflict and economic
instability. The laws and institutions of a newly independent East Timor
are ultimately a matter for the East Timorese. But Australia can play
a significant role in helping to develop an effective and sustainable
land administration system, particularly by promoting political compromise
and contributing to adequate institutional development.
Four major issues stand out: land claims, land administration,
conflict resolution and economic development. The first-land claims-is
the key. East Timor's unfortunate colonial history means that land may
now potentially be claimed on four competing bases: underlying traditional
interests, titles issued in both the Portuguese and Indonesian eras, or
long term occupation. Until this issue is resolved, it will be all but
impossible to establish an effective system of land administration. The
paper examines alternatives and puts forward some options for resolving
the complex array of competing claims to land.
Re-establishing a system of land administration is also
an urgent priority. The basic policy choice lies between:-
- A 'big bang' approach where all alleged titleholders must apply afresh
for new titles through a process of systematic registration. Systematic
registration is just that: a 'roll out' of titles registration in designated
areas. This process is expensive and time-consuming, but would have
the benefit of systematically addressing all land disputes at the same
time as all new titles are registered.
- A more graduated approach which begins with applicant-driven registration
of titles or notification of disputes. In this first stage, only those
disputes brought to aa Land Claims Commission, as opposed to those uncovered
by a systematic registration process, would be heard and determined.
Equally, only those who specifically apply for a new title, as opposed
to those living in areas designated for systematic registration, would
receive a fresh title certificate. The advantage of this approach is
that it requires relatively little institutional capacity, and far less
funding than systematic registration. Systematic registration could
then take place, as a second stage, once the legal framework and institutions
of mediation and adjudication have been properly established.
Resolving land claims and re-establishing land administration
will not succeed without an effective system of conflict resolution. Australian
policy-makers should be wary of the Papua New Guinea experience. On paper,
that country has highly credible and sophisticated laws to deal with land
conflict, particularly in respect of customary land, but in practice these
rules appear to have failed to prevent many conflicts as the relevant
institutions lack the capacity, funding and political support to implement
them. The obvious lesson is that conflict resolution institutions must
be as self-funding and self-enforcing as possible.
Providing sufficient land certainty for economic development
is inseparable from all these three preceding issues of land claims, land
administration and conflict resolution. It will be tempting, particularly
for non-lawyers, to argue for a clean slate: to allocate lands and titles
afresh, and to facilitate urgently needed investment by legislating away
all prior claims. Indeed, there is some talk of nationalising land for
this purpose. But postcolonial experience shows that there is no magic
wand solution to intractable land conflict. Certainty cannot be restored
simply through state fiat. Institutional decisions will be ineffective
without social consensus and ground-level support. The paper puts forward
two ideas for promoting investment and sustainable economic development
through the controlled use of land and resources.
Introduction
Quite apart from human rights considerations, Australia
has important strategic interests in a stable East Timor. Recent events
in the Pacific have highlighted the importance of land to social stability,
particularly in customary and postcolonial environments. Currently, land
issues in East Timor contain significant potential for political conflict
and economic instability. This paper will provide a brief overview of
four key land issues and possible responses to them.(1)
The first key issue is that of land claims. Currently,
land may potentially be claimed on four competing bases: underlying traditional
interests, titles issued in both the Portuguese and Indonesian eras, or
long term occupation. The paper will discuss the nature and number of
these claims, institutional and legal requirements to resolve them, and
the political division between the two major political groups, Uniao Democratica
Timorense (UDT) and Frente Revolucionara de Timor Leste (Fretilin),
over the status of pre-1975 Portuguese titles.
The second issue is land administration. All land title
offices were destroyed during the militia violence, apparently as a deliberate
policy of the Indonesian army, and most records were lost in the destruction.
The paper will canvass how a Land Titles Office may be re-established;
what form a new registry system may take; how it may be extended, particularly
in urban and peri-urban areas; and the key areas where capacity-building
and institutional strengthening will be required.
The third issue is conflict resolution. This is not only
inseparable from land claims and land administration, but is important
due to the re-emergence of long suppressed rural conflicts. The paper
will discuss current UNTAET responses by the United Nations Transitional
Administration in East Timor (UNTAET) to land conflict, the possibilities
and structure of a mediation process, and institutional issues of compensation
funding, provision of alternative land and training for mediators and
judicial officers.
The fourth and final issue is that of establishing sufficient
certainty and procedures for private investment. Possible options for
UNTAET, including state guarantees of title for major projects, will be
discussed. Then, long term issues of land development will be canvassed,
including the extent, if any, of dealings that may be allowed in customary
land, and ways in which customary groups may embark on sustainable development
through agricultural, forestry, mining or fishery agreements.
The Local Context
East Timor has a land area of approximately 14 600 square
kilometres. Some 42 per cent is viable agricultural land, of which approximately
half is currently cultivated.(2) The bulk of agricultural activity is
subsistence farming (corn, rice, root crops, vegetables and fruit), although
there is some production of coffee, tobacco, cloves, cocoa, vanilla and
areca nuts.(3) Coffee is particularly seen, with Timor Gap revenues, as
the potential backbone of future export income. There is also potential
for cattle and poultry breeding, and fisheries activity. However, aside
from some mahogany, forestry activity is limited due to severe deforestation,
and the once-thriving sandalwood trade has all but expired due to over-exploitation.(4)
Agricultural activity and settlement patterns are defined
by the rugged landscape. The north and south coasts are divided by a dramatic
mountain range, with some peaks over 3000 m. Overall, the country is in
the dry tropics climatic zone, with annual wet and dry seasons. The north
coast receives relatively little annual rainfall (50 -- -100 cm) as compared
to the mountain areas (250 -- -300 cm) and the south coast (150 -- -200
cm). Most mountain areas are too steep and deforested for intensive cultivation,
and irrigated cultivation is thus largely confined either to the south,
or areas surrounding flood plains, swamp land or natural springs.(5)
Although few surveys have been conducted, and available
information should be treated with care, mining potential outside the
Timor Gap appears relatively limited.(6) East Timor certainly does not
have the enormous mineral reserves of Irian Jaya (West Papua) and Papua
New Guinea.(7) There are known marble and plutonium deposits in Manatuto,
on the north coast, and some gold and other metals in several sub-districts.
There are also some indications of possible oil and gas reserves along
the south coast, although reportedly these are relatively small-scale
and may be difficult to exploit.(8) Of course, as is well known, the zone
previously shared by Australia and Indonesia under the Timor Gap Treaty
has recently shown significant potential, most notably for natural gas.(9)
Culturally and linguistically, the country is a patchwork
of different ethnic groups, with as many as 30 separate languages. Prior
to the arrival of the Portuguese, East Timor experienced waves of migration
of Austronesian, Papuan and proto---Malayan peoples.(10) Generally speaking,
there is greater Melanesian influence on the south coast, and proto- Malayan
in the north coast. These distinctions have been enhanced, to some extent,
by geographical separation based on the mountain divide, and perceptions
of varying degrees of resistance to Indonesian rule.(11)
Notwithstanding this diversity, traditional social structure
is based throughout East Timor on 'kings' known as liurai. Prior
to the arrival of the Portuguese, East Timor consisted of numerous small
kingdoms under the hereditary control of a "liurai". The liurai
system, and other customary institutions, retain strong influence in East
Timor, particularly in rural areas. However, we also know that this traditional
system has been disrupted and factionalised by colonisation and war. For
example, after the Dom Boaventura rebellion of 1911-12, the most significant
liurai-led revolt against Portuguese rule during the colonial period,
the Portuguese administration required that all liurai obtain approval
before taking up office.(12) They also withdrew recognition from hostile
liurai, particularly in Lautem, Viqueque and Liquisa.(13) Over
time, as the Portuguese fragmented liurai power, the suco
(princedom) rather than the reino (kingdom), became the
basic indigenous political unit.(14) Suco are governed by a customary
authority commonly known as dato (although there are significant
local variations in terminology). A dato is usually the head of
a lineage descended from assistants to the original liurai.
UNTAET and the Institutions
of Government
On 30 August 1999, almost 8078.5 per cent of East Timorese
voters, by rejecting the option of greater autonomy within the Indonesian
state, effectively voted for independence. The ensuing violence and destruction
by pro-Indonesian militia displaced most of the population and destroyed
much of its housing stock. All government records, including land titles,
were directly targeted and either burnt or carried off. Being either non-East
Timorese or pro-autonomy supporters,(15) virtually all senior civil servants
including the judiciary, and most lawyers and public notaries, fled to
Indonesia after the vote. All large-scale business operations, also controlled
by Indonesians or pro-autonomy supporters, ceased to operate. In the result,
economic activity stopped altogether, unemployment was almost universal
and the institutions of government simply ceased to exist.
On 25 October 1999, the United Nations Security Council
passed Resolution No 1272, establishing the United Nations Transitional
Authority in East Timor (UNTAET). Article 1 vested all legislative and
executive authority with respect to East Timor, including the administration
of justice, in the hands of the UNTAET. Article 8 stressed 'the need for
UNTAET to consult and co-operate closely with the East Timorese people
... with a view to developing local democratic institutions and transfer
to these institutions of UNTAET administration and public service functions'.
UNTAET's first regulation (No 1 of 1999) contained similar provisions,
and in particular vested UNTAET's powers (and obligation to consult with
the East Timorese) in the hands of a Transitional Administrator, who is
currently Mr Sergio Viera de Mello.
The primary political representative of the East Timorese
people is the Council of National Resistance for East Timor (CNRT). CNRT
was established in 1998, as a successor organisation to CNRM (the Council
of Maubere People's National Resistance), and consists of representatives
from most of East Timor's pro-independence political groups. These include,
most notably, the two largest political groups, UDT and Fretilin. The
leader of CNRT is Xanana Gusmao. UNTAET now co-operates and consults with
CNRT, and other East Timorese representatives, through a period of co-government
with UNTAET in which international and East Timorese ministers serve together
in a Cabinet, and East Timorese members have been progressively be introduced
into management positions within a mixed East Timorese and international
East Timor Administration. The former UN staff Governance and Public Administration
department heads have become senior civil servants under their respective
ministers and, again over time, are expected to be replaced by East Timorese.
Ultimately, through this process, elections are to be held to choose a
Constituent Assembly which would will draft and adopt a constitution.
Following this process, the Constituent Assembly would will become the
East Timorese Parliament, and full independence would become available
some time soon thereafter. It is expected that elections will be held
between April and November 2001.
Pursuant to these proposals, on 14 July 2000 UNTAET promulgated
Regulation No 23, establishing a Cabinet of the Transitional Government
in East Timor, and Regulation No 24, establishing a National Council
(NC). Under Regulation No 23, Cabinet officers are to hold such portfolios
as determined by the Transitional Administrator, and are vested with executive
authority over offices and departments within their respective portfolios
(article 1). The Cabinet is empowered to formulate policies and programs
for the government of East Timor, to supervise the East Timor Administration,
to recommend regulations or return draft regulations to the NC, and to
recommend approval and promulgation of draft regulations by the Transitional
Administrator (article 4.1). It may also require officials of the East
Timor administration to provide information to it as directed (article
4.2). The portfolios of the First Cabinet are internal administration,
infrastructure, economic affairs, social affairs, police and emergency
services, political affairs, and justice & and finance. While it appears,
therefore, that the Cabinet will play a powerful role in East Timor, its
power remains ultimately circumscribed by the Transitional Administrator.
This is because Cabinet membership, composition and portfolios are to
be determined by the Transitional Administrator, and Cabinet decisions
are ineffective until review and approval by the Transitional Administrator
(articles 1 and 4.3).
Under Regulation No 24, and unlike its predecessor consultative
body, the National Civic Council (NCC),(16) the NC is expressly established
as a forum for legislative matters (article 1), with power to amend
existing regulations, and to initiate, modify and recommend draft regulations
(article 2). The NC is also a much enlarged version of the NCC. It has
33 members including seven from CNRT, three from political parties outside
CNRT, and one each from the Catholic Church, Protestant Churches, Muslim
community, women's organisations, students/youth's organisations, the
Timorese NGO forum, professional associations, farming community, business
community, labour organisations, and the 13 Districts of East Timor. In
many ways, the NC bears the hallmarks of a nascent Parliament, with a
Speaker and deputy Speaker, authority over its rules of procedure, power
to establish advisory committees and authority to require the appearance
of Cabinet Offices officers to answer questions regarding their respective
functions (article is to.1, 4.1, 4.3, 6.1,). Notably, it is also to have
its own secretariat (article 4.5). Nevertheless, again it is important
to note that the Transitional Administrator retains a discretion to approve
any draft regulations or amendment endorsed by the NC, where it has also
received the recommendation of the Cabinet, provided that the draft regulation
is consistent with the fulfilment of his mandate under Security Council
Resolution 1272. He also has the sole power to appoint NC members after
consultation with relevant groups represented on the NC (article 3.3).
Land Claims
Resolving land claims in East Timor will be a pre-condition
to establishing social and economic certainty. Yet, they present issues
of unusual complexity and sensitivity, and hence their consideration forms
a substantial part of this paper. This complexity arises from East Timor's
unfortunate colonial history. Most colonies only experienced one wave
of dispossession, and thus generally have only one category of dispossessed
claimant. East Timor has suffered successive waves, from Portuguese colonisation
through Japanese occupation to Indonesian invasion. As a result, land
in East Timor can now be claimed on four bases: underlying traditional
interests, titles issued in both the Portuguese and Indonesian eras, or
through long term occupation.
Although official policies have yet to be formulated,
in broad political terms UDT is said to support restoration of pre-1975
Portuguese titles.(17) In part this is due to distaste for Indonesian
rule; but there is also an alleged element of self-interest, as many of
its supporters-particularly former civil servants-reputedly accumulated
significant landholdings under the Portuguese administration. Fretilin,
for its part, desires land justice for traditional and/or dispossessed
groups. Its leader, Xanana Gusmao, has also reportedly indicated that
consideration needs to be given to recognising bona fide Indonesian titles.(18)
It is inevitable, therefore, that competing claims will arise with significant
political and economic implications. Put at its simplest, restoration
of Portuguese titles may favour UDT interests and arguably entrench Portuguese
dispossession. Conversely, recognising traditional claims or Indonesian
titles may diminish UDT interests.
Australia's interests favour compromise and minimisation
of conflict. It should not be forgotten that the brief armed conflict
in 1975 between UDT and Fretilin, the two main political parties, was
triggered in part by Fretilin's policies of land reform. The following
part accordingly considers issues relevant to resolving competing land
claims in East Timor.
Colonial Dispossession
and Claims Based on Traditional Rights
Claims based on dispossessed customary interests, generally
supported by Fretilin, have great social significance, particularly as
a result of widespread dispossession and resettlement under both the Portuguese
and Indonesian regimes. Briefly, Portuguese dispossession began in earnest
after May 1901,(19) when a new law on overseas land concessions was passed
which inter alia stated that all land not proved to be based on Portuguese
titles was held by the state.(20) Pursuant to this law, the Portuguese
administration developed the Carte de Lei, a map of traditional lands
divided between those controlled by a liurai and those 'without
a master'. The latter were vested in the Portuguese state, and could be
the subject of issued land titles known as alvara. This process
was undeniably a major source of Portuguese dispossession.
In December 1910, the Governor of East Timor also issued
a decree requiring inter alia all transfers of 'native tenure' to be approved
by the Governor. The catch was that, to establish native tenure the occupier
must have cultivated or built upon at least half of the land area. All
lands outside these areas were deemed unused and could be subject of grant
of alvara titles by the Portuguese administration. In particular,
such grants could be made by the District Administrator up to an area
of 100 hectares by the District Administrator and over that amount by
the Governor.(21) This also was a major source of dispossession because
customary tenure, at that time, was largely based on hunting and shifting
cultivation; and, in any event, customary conceptions of tenure extended
far beyond areas surrounding cultivation and housing. It follows that
to limit native tenure holdings to twice the area of their housing and
fixed cultivation was to deprive traditional groups of much of their land.
In the result, by the time of the first declaration of
independence in 1974, land ownership was allegedly highly concentrated
between five groups: the Catholic Church, the State Agricultural Company
known as SAPT ( Sociedade Agricola Partia e Trabalho), liurai favoured
by the Portuguese administration, a mestizo elite of mixed Portuguese
and indigenous descent, and Chinese-Timorese trading concerns.(22)
Indonesian rule continued this history of dispossession,
while adding another factor: massive resettlement of villages from the
Fretilin-dominated interior to areas along the coast or adjacent to major
roads. More details of the dispossessory aspects of Indonesian land administration
may be found in other works by the author.(23) Suffice it to say that,
first, most land compulsorily acquired for both public and private development
was taken without due process or adequate compensation. This was because
officials eschewed use of Indonesia's 1961 law on compulsory land acquisition,
in favour of often spurious assertions-made in an atmosphere of intimidation
and duress-that land-holders had in fact agreed to the acquisition in
question. Second, substantial tracts of traditional lands, particularly
forest areas, were taken on the basis of de facto non-recognition of customary
tenure by Indonesian authorities. This was broadly because the formal
recognition of custom in Indonesian land law is made subject to inherently
vague concepts of national interest and the social function of land. Third,
most of the East Timorese population, at times, have been displaced or
resettled due to war and militia violence.
It should be apparent therefore, even from this brief
historical account, that there are substantial social and political pressures
to restore traditional lands lost due to colonial dispossession. The preliminary
point needs to be made, however, that this is a quite distinct issue from
that of recognising customary tenure. The social structure of East Timor
is such that customary interests must be recognised. Almost all rural
areas continue to follow traditional lives, guided by traditional institutions,
and occupy land that has never been registered in a formal titles system.
The contentious issue, for our purposes, is not whether current traditional
occupiers should receive formal recognition, but whether those who have
lost traditional lands through colonial dispossession should receive their
lands back, or indeed receive some other form of remedy.
Restitution
One disadvantage of restoring land to dispossessed traditional
owners is that it will entail substantial resources and expertise. While
the notion of formally recognising titles on the basis of traditional
connections to land will be familiar to Australian readers, the Australian
native title approach -- -sifting a history of dispossession through legalistic
notions of traditional connection and extinguishment -- -demands great
institutional capacity. Issues such as the status of migrant groups, the
significance of intermarriage, the possibility of opportunistic claims
and conflict within customary groups -- -these all require substantial
anthropological, legal and, above all, mediation skills. While building
these skills should be a major priority in the reconstruction of East
Timor, an initial assessment should be made as to the institutional capacity
to embark on a native title-type process. The likely conclusion, of course,
is that such a process will require substantial and sustained assistance
from the international community.
Land Reform
One alternative would be a process of land reform: provision
of sufficient lands for poor and displaced groups. The advantages of this
process are that it avoids the complex issues of migrant groups and defining
customary claims, while ensuring that dispossession is redressed by granting
all people the right to adequate land. This result may be easier to achieve
than it seems, because war and famine have created surprisingly large
tracts of unused and fertile land in East Timor. Hence, a degree of land
justice may conceivably be achieved through creation of a land bank, and
mediated movement by the dispossessed and landless to lands with suitable
infrastructure and fertility. Those peoples would then receive statutory
rights, which would also avoid the inadequacies of defining the content
of customary title by reference to its traditional indicia, rather than
allowing more modern uses.
However, disadvantages of land reform include the fact
that, in customary law, all land in East Timor is owned by liurai
and/or customary groups. Even though large amounts of land are unused,
the East Timorese recognise that traditional rights remain all over that
land. It follows that, if there were to be land allocations to the poor
and dispossessed, that process would always entail negotiation with traditional
owners. Moreover, for reasons of spiritual connection, those wishing to
move will prefer return to their ancestral lands to living on the traditional
lands of another group. In either event, the difficult questions of customary
tenure will not be able to be avoided. If negotiations with traditional
owners will be necessary, who represents those owners and what is the
nature of their compensable interest? If those moving wish to return to
their ancestral lands, what is the status of migrant groups on that land?
Another disadvantage of land reform concerns its comparative
lessons and experiences. In many post-colonial countries its results have
been disappointing.(24) If unused lands are to be allocated to the poor
and dispossessed, then sufficient shelter, agricultural tools and infrastructure
must be provided. If large holdings are to be limited, or broken up, economically
important agricultural industries should be sustained. If the whole process
is to reduce conflict and allow certainty, then political consensus must
be established and political retribution avoided.
To summarise: political realities are that colonial dispossession
cannot be ignored in creating a new land system in East Timor. That being
so, the broad policy choice appears to be between the rock of land restitution
and hard place of land reform. Both have advantages and disadvantages,
and, bearing these in mind, this paper briefly sketches two possible forms
of political compromise.
Restitution and Land Reform
The first, with the virtue of relative simplicity, would
be to redress Indonesian dispossession through land restitution, and Portuguese
dispossession through land reform. In other words, those who lost lands
through unlawful or unjust taking by the Indonesian authorities may have
a right to return of their land, or some other remedy such as compensation.
But those who lost land through unlawful or unjust taking by the Portuguese
administration would receive no remedy other than a general right to participate
in a land reform process. This would avoid the difficult issues of tracing
details of dispossession (e.g. location and boundaries, genealogy and
identity of claimants, and time and manner of dispossession) back to 1910
or earlier. The trade-off for UDT interests, if they are to accept the
concept of land reform, could be prima facie recognition of Portuguese
era titles. This issue is discussed further below.
Zones
The second possibility, not necessarily inconsistent
with the first, would be to divide the country into zones. Urban areas,
economically strategic sites such as plantation land, and public purpose
lands (hospitals, schools etc.) could be legally freed of any claim by
traditional interests. All other areas could be the subject of claim,
but where competing interests such as bona fide Portuguese or Indonesian
titles were upheld, traditional claimants would only receive a right to
compensation, substitute lands or some other form of benefit.
Claims Based on Portuguese
Titles
If, then, customary tenure is to be recognised, and perhaps
serve as a basis for restoring lands taken under the Portuguese or Indonesian
administrations, what of Portuguese titles? How could they be upheld in
any quest for social and political compromise? According to Indonesian
statistics, 2843 Portuguese titles were issued and registered under Portuguese
administration.(25) If they are upheld, in what circumstances, if any,
would they be defeated by claims based on traditional interests or Indonesian
titles?
This difficult question has two aspects: internal and
external. Internally, the issue is what was the fate of those titles?
Some Portuguese title properties were confiscated by the Indonesian military
without compensation, and would legitimately therefore be the subject
of claim. But, aside from confiscation, Indonesian law did formally recognise
pre--1975 Portuguese titles, although after 1991 many of these titles
were converted into lesser interests.(26) On the basis of this recognition,
a number of Portuguese title properties were sold. It appears that those
sold, or, being interests limited in time (e.g. aforamento rights),
lapsed, should not validly be allowed to be claimed. However, those that
were compulsorily converted to lesser rights, arguably should be the subject
of full claim. In short, if pre-1975 titles are to be recognised, tracing
their history post-1975 will be fundamental. This will raise difficult
questions of proof which are discussed below when considering re-establishment
of a system of land administration.
The external aspect relates to the nature of any competing
claims. Is, for example, there a bona fide occupier, based on an Indonesian
title, without knowledge of the dispossessed Portuguese land-holder? What
is the status of any post-30 August 1999 occupation? Are such occupiers
acting in good faith? Did they require, and if so seek, permission to
occupy from UNTAET? Is there a claim based on underlying traditional titles?
At this point, of course, the reader might well ask what need is there
to consider any competing claims. Given that Indonesia was a belligerent
occupier, why not simply decree that all non-consensual land acquisitions
under the Indonesian administration were null and void? Why not revert
to pre-1975 titles, and perhaps include land reform to remedy Portuguese
dispossession?
The advantage of simply restoring all land non-consensually
acquired under Indonesian administration is that it accords with the UN
General Assembly view that Indonesian occupation was unlawful. It satisfies
the substantial political pressure to simply restore pre-1975 Portuguese
era titles. It avoids the complex process of untangling the different
methods of Indonesian dispossession. It solves the problem of limited
non-Indonesian expertise in Indonesian law and administration. Finally,
it avoids difficult evidentiary issues arising out of the destruction
of land records.
However, there are substantial disadvantages to simply
restoring all pre-1975 Portuguese era titles. First, many thousands of
titles were issued under the Indonesian administration.(27) While a number
of these were issued to persons other than the true owners, through bribery
and subornation of local officials, it appears that many more are held
in good faith by East Timorese themselves. Second, Xanana Gusmao has reportedly
promised indicated that bona fide Indonesian titles may be respected,
and East Timor's geographic and strategic environment requires future
cooperation and good relations with Indonesia. Third, invalidating all
Indonesian titles without compensation may well be in breach of international
customary law,(28) and hence would be outside UNTAET's legal authority.
Simple reversion to pre-1975 Portuguese titles has its
political attractions, particularly given the antagonism towards Indonesian
rule. But, in the author's view, it would:
- dispossess too many bona fide East Timorese land-holders who received
titles under Indonesian titling programs;
- raise enormous practical difficulties of unravelling chains of title,
both where Indonesian titles were based on converted Portuguese titles,
and where the pre-1975 Portuguese title holder has died intestate under
Portuguese law;
- antagonise Indonesia at a time when good strategic and economic relations
are paramount; and
- likely be politically unacceptable to Fretilin because of its boost
to UDT interests.
Claims Based on Indonesian
Titles
Should it be necessary, therefore, to uphold Indonesian
titles, legal and institutional principles will need to be developed to
distinguish bona and mala fide Indonesian titles. This is necessary because
many titles were issued corruptly to persons other than the true owners.
Indeed, one former East Timor land titles officer under Indonesian administration
estimated that 20-30 per cent of all Indonesian titles issued in East
Timor were issued through corrupt processes.(29) It is also urgent because
many Indonesian titleholders are now seeking to sell their titles through
agents in East Timor, and, although such sales have recently been declared
temporarily invalid by UNTAET,(30) if they were ultimately to be allowed,
it would assist to entrench the corrupt dispossession under Indonesian
titling programs.
That said, and as with Portuguese titles, prima facie
recognition of Indonesian titles will also require remedies to redress
dispossession during the period of Indonesian rule. This issue cannot
be ignored because non-consensual acquisition of land in East Timor was
marked by duress, lack of due process and non-payment of adequate compensation.
If, then, land taken by the Indonesians is to be returned, certain institutional
requirements will need to be met, including knowledge of the Indonesian
system of land administration, legal reform to establish a sound basis
for many forms of tenure not recognised by Indonesian land law, provision
for public purpose land to be quarantined from restitution, and development
of alternative remedies of compensation or substitute land. Many of these
issues, of course, overlap with those discussed when considering means
to remedy Portuguese dispossession.
Claims Based on Non-Traditional
Long Term Occupation
It finally remains to mention claims based on non-traditional
long term occupation. This is relatively widespread in East Timor, particularly
in urban and peri-urban areas, due to displacement and economic migration.
Indonesian land law generally does not recognise rights based on long
term occupation, and thus the issue is whether the law should be reformed
to allow claims based on this phenomenon. It is arguable that post-30
August 1999 occupations should not be recognised because that would entrench
recent displacement and economic migration, and reward opportunistic occupations.
At the same time, however, equity considerations suggest that long term
occupation from before 30 August 1999 should, if it meets certain
criteria relating to term of years and avoidance of conflict, be granted
formal recognition. This is reportedly an issue of particular concern
for Xanana Gusmao because of the large number of displaced poor communities.(31)
Recognising such occupation, of course, would simply be equivalent to
the 'adverse possession' provisions of most developed legal systems.(32)
To summarise, finally, what form a political compromise
over land claims may take, this paper briefly suggests two possibilities.
The first, in brief, would be to recognise customary rights as the underlying
tenure of East Timor. Circumstances would then be recognised where those
rights would presumptively have been extinguished by, or co-exist with,
either subsequent Portuguese titles, bona fide Indonesian titles or public
interest requirements or uses. Bona fide Indonesian titles would also
extinguish Portuguese era titles, but would lose to public interest requirements
or uses. The second would be to recognise Portuguese titles as the underlying
tenure of East Timor, including the Portuguese occupao right of
traditional owners,(33) but allow for those rights to be extinguished
by bona fide Indonesian titles or public interest requirements, and
embark on a process of land reform for poor and traditional groups. Such
a process would not involve legalistic processes of land restitution,
but land justice: that is, provision of appropriate lands for poor and
displaced groups.
Land Administration
A system of land administration must be re-established
as an urgent priority. This issue may be divided into two parts: re-establishing
the land registry, and extending registration to previously unregistered
areas. The first arises due to the destruction of most land titling records
in East Timor. Militia groups, apparently under direct orders from the
Indonesian military, directly targeted land title offices and records.
As a result, approximately 80 per cent of all written records were burnt
and irrecoverable. Additionally, because most land holders land-holders
were forced to flee so quickly, most copies of land titles certificates
were left behind and burnt in the general destruction.
Re-establishing the Land Registry
One possibility would be to integrate the land claims
process with re-establishment of the land registry. This may be termed
the 'big bang' approach. It would be done by requiring all alleged titleholders
either to apply afresh for a registered title (sporadic registration),
and/or be registered through a systematic roll-out of land titling in
designated areas (systematic registration). Registrations under either
the Portuguese or Indonesian administrations would not be valid per se,
but would act as evidence of an entitlement to a new registration. In
this approach registration may arise not only from 'urgent' sporadic applications,
which would presumably apply to commercial developments, but also the
determination of notified land disputes. The result would be that land
disputes will fall to be resolved after either notification by the parties,
or through the systematic registration process. In either event, the result
will be a registered title in the hands of a successful claimant.
A number of key issues would have to be resolved under
this approach, in particular:
- (1) the legal framework for competing applications,
- (2) provision of funding and development of institutional capacity,
and
- (3) the legal status of any registered titles.
Of these, the legal framework presents perhaps the most
difficult questions. Where there are conflicting claims, is it possible
to leave the fundamental issue of which titles are valid (Indonesian,
Portuguese, or traditional) for resolution at a later date? Should the
land registry allow for registration of Indonesian titles (i.e. those
recognised by Indonesia's basic land law - the Basic Agrarian Law of 1960),
and also allow for claims to be made on the basis of Portuguese titles?
Is it possible to disentangle the politically sensitive question of competing
claims from the practical imperative to re-establish a functioning land
registry?
In other words, there is a risk that re-establishment
of the land registry will be delayed by an unresolved competition between
Portuguese and Indonesian titles. This 'big bang' approach requires significant
funding and institutional capacity. Systematic registration is notoriously
slow and expensive and, without sufficient funding, may overload the nascent
dispute resolution and adjudication system. This would be particularly
so if the land registration process, to the extent that it is a final
and conclusive determination of land claims, throws up a host of opportunistic
or long-submerged land disputes. In other words, claims may well be widespread
because of fears that systematic registration will be the 'last word'
on entitlements to land. Without clear principles to govern the resolution
of competing claims, social and commercial certainty may suffer as the
land registration process becomes bogged in widespread land disputes.
An alternative would be to begin with a sporadic applicant-driven
system only, and leave systematic registration to a later date. Only those
disputes brought to a Land Claims Commission, as opposed to those uncovered
by a systematic registration process, would be heard and determined. Equally,
only those who specifically apply for a new title would receive a fresh
title certificate. Moreover, that title could be qualified only. In other
words, it would be good evidence of title unless and until proven otherwise.
After a certain period, if no competing claims had been made, the qualified
title would automatically convert to an absolute one. Hence, a commercial
investor could gain some interim certainty with respect to land, without
waiting for a full-blown land registration and title determination process.
It would also allow some certainty pending political resolution of the
competing Indonesian/Portuguse/traditional titles issue. Further, the
advantage of this approach is that it requires relatively little institutional
capacity, and far less funding than systematic registration. Systematic
registration could then take place, as a second stage, once the legal
framework and institutions of mediation and adjudication have been properly
established.
Another incremental option is to begin with a rudimentary
'deeds registration system'. Importantly, this system focuses on transactions
rather than titles, and may thus be established without necessarily waiting
for a legal framework to resolve competing underlying claims to land.
At its simplest, the deeds registration system grants priority to registered
land transactions over competing unregistered transactions. It means that
an investor can check a location and, should there be no registered dealing
over it, register their transaction in the knowledge that it will be protected
from a claim by any competing unregistered interest in the land. Importantly,
this process does not grant a valid interest to its registered holder
where there is no underlying title to that interest, for example where
the 'owner' purportedly granting the interest is ultimately determined
not to be the true owner, or the transaction is otherwise invalid due
to fraud, forgery or mistake. In other words, a registered interest may
be defeated by a competing true owner, as ultimately determined by a land
claims framework. The system would thus not provide complete certainty
to land administration, although it has the potential to evolve to that
result, as it has in Great Britain and many parts of the United States
of America; but it does have the advantage of providing partial certainty
until East Timor's future government formulates a legal framework to determine
competing underlying claims to ownership of land.
Provision of Funding
and Institutional Development
The policy choice is a difficult one. If successful,
the 'big bang' approach would, at one stroke, solve the issues of land
claims and re-establishing the land registry. However, without proper
funding and sufficient institutional capacity, embarking on systematic
registration, at this stage, may well overwhelm institutional development
with opportunistic claims and intractable conflicts. Moreover, in making
this policy choice and in formulating Australian policy recommendations,
the sheer difficulty of systematic registration in the context of East
Timor should be recognised.
In particular, most Indonesian title documents were destroyed
during the militia violence, and thus oral testimony will likely be the
key evidentiary material. There is no other real choice. But this, again,
raises the possibility that land registration will become bogged down
as opportunistic claims and neighbourhood disputes are triggered by the
land registration process, particularly if this process purports to produce
final and conclusive statements of title. The simple phrase, 'neighbourhood
recognition of titleholders', hides a multitude of practical difficulties.
It is important not to over-romanticise community processes. In almost
all small communities, there are political disputes over access to resources,
and political leaders who may manipulate those disputes for their own
private ends. The mere fact that a traditional leader, such as a liurai,
or an elected government figure, such as a chefe de suko, states
that a particular person or family has the right to a land block may not
represent the consensus view of the community, and thus registration may
simply exacerbate any conflict at village level. Sifting oral testimony
in developed legal systems, particularly in the absence of documentary
evidence, presents notorious difficulties for judges and juries. In East
Timor, it will be compounded beyond measure by the relative inexperience
of its lawyers and mediators.
The Legal Status of Registered
Titles
The final question relates to the legal status of any
registered titles. One often hears, in this context, Australian lawyers
extolling the benefits of our Torrens system, which, subject to certain
narrow exceptions, grants absolute indefeasible status to bona fide registered
titles.(34) In theory, this system reduces costs and enhances certainty
by allowing investors to rely with confidence on the legal finality of
the titles register. Yet, in truth, there is considerable misinformed
comment on the benefits of a Torrens systems for developing countries.
The author's experience in Malaysia and Papua New Guinea, both countries
with Torrens systems, suggests that certain institutional preconditions
are necessary for an effective Torrens system. These include:
- a relative absence of fraud, corruption and incompetence, particularly
in Land Titles Offices;
- a relatively settled and dispute-free system of underlying tenure
so that the register can faithfully reflect community understanding
of land ownership;
- public confidence in the system and relatively low barriers to entry
so that the public will record subsequent transactions and thus maintain
the reliability of the register;
- a relatively competent judiciary so that necessary exceptions to indefeasibility
are not widened to such an extent that the register loses its reliability;
and
- a compensation fund to ensure that those who lose their land through
fraudulent registration and then bona fide sale can receive a remedy
other than land restoration.
Developing all these pre-conditions, particularly in
relation to settled understandings of underlying tenure, may well be gradual
in East Timor.
Extending the Land Register
The related issue of extending the land registry system
to previously unregistered areas may be dealt with briefly. Economists
tend to view land registration as wholly positive, a precondition to land
mobilisation, productive agriculture, a market for credit and, ultimately,
economic development.(35) In the 1990s, for example, the World Bank strongly
supported land registration programs, and indeed AusAID has funded many
land registration programs in our region, including in Indonesia, Thailand,
Laos and Papua New Guinea.(36) However, care needs to be taken, particularly
in relation to customary lands. Systematic registration of land titles
in the Third World is notoriously expensive, and often fails to achieve
its objectives of increased certainty and reduced conflict.(37) In the
author's opinion, too often means are mistaken for ends, and, as a result,
registration programs are incorrectly measured by number of certificates
issued rather than empirical assessments of reduced levels of conflict
and uncertainty.
Ultimately, should land registration programs be deemed
desirable, they must be developed by reference to issues of institutional
supply and demand. In terms of supply, project design should consider
the capacity and susceptibility to corruption of implementing agencies,
the adequacy of supporting laws and regulations, and the provision of
post-registration funding and expertise. In terms of institutional demand,
project design must consider a whole range of factors, particularly relating
to the demand by land-holders themselves, and include such issues as:
- the nature of existing tenures, agricultural use and land types;
- the nature and degree of land disputes;
- the degree of public confidence in state institutions;
- the degree of awareness by landowners of the purpose and nature of
land registration programs;
- the degree of demand by outside developers for land certainty;
- the nature of informal institutions or dealings already existing over
the land;
- the nature of any incipient markets for credit and institutional credit-providers;
and
- the pressure on customary forms of authority and tenure from individualisation
of tenures.
Conflict Resolution
Resolving land claims and re-establishing land administration
will not succeed without an effective system of dispute resolution. Policy-makers
in East Timor should be wary of the Papua New Guinea experience. On paper,
that country has highly credible and sophisticated laws to deal with land
conflict, particularly in respect of customary land, but in practice these
rules are all but meaningless as the relevant institutions lack the capacity,
funding and political support to implement them.(38) The obvious lesson,
of course, is that conflict resolution institutions must be as self-funding
and self-enforcing as possible. This will require that there be as close
conformity as possible with existing patterns of dispute resolution.
So much is straightforward. However, in practice the
romantic notion that traditional processes can be largely substituted
for a state-sponsored system often yields to the reality of intractable
intra-and inter-communal disputes over land. Inter-communal land conflict
is a particular problem in East Timor because of its history of displacement
and migration. Major disputes are currently ongoing in the districts of
Los Palos, Maliana and Viqueque. Inter-communal conflict is also a problem
because land is such a basic resource and source of power. In either case,
disputes may remain unresolved or suppressed unless there is external
dispute resolution assistance. In short, conflict resolution in traditional
societies is a delicate task: traditional processes must be respected,
but appropriate bridges must be provided for state institutions to assist
and/or intervene.
Building Bridges Between
Tradition and the State
Building bridges between state institutions and traditional
processes begins with detailed knowledge of social structure. Here, UNTAET
is at a disadvantage because it appears that circumstances changed so
much under Indonesian occupation that international anthropological experts
on East Timor, largely barred from study during the Indonesian era, will
require considerable time and effort to update their pre-1975 knowledge.(39)
Obviously, the East Timorese know their country best and, as with all
other issues discussed in this paper, should determine what institutions
are appropriate. But even the East Timorese will require structured projects
and funding to provide appropriate anthropological information for a land
claims process. Australia is well placed to assist in this task as a result
of institutional anthropological capacity developed in the native title
process, and also because Professor James Fox, a leading anthropological
expert on East Timor, is based at the Australian National University.
A host of questions will require answer. For example,
if localised dispute resolution institutions are to be established, who
best performs a dispute resolution role in traditional communities: the
liurai or some other institution of customary authority? What is
their relationship with Church representatives, and CNRT and East Timor
Administration officials? Would dispute resolution institutions based
around liurai and East Timor Administration officials be effective
or viable? To what extent do liurai represent an unacceptable form
of feudal authority? How would human rights and non-discriminatory practices
be guaranteed? In what circumstances would state law and institutions
intervene to modify or overturn traditional determinations?
Developing a System
for Dispute Resolution
In general terms, a three-tier system of conflict resolution
is likely to be proposed: traditional processes, then mediation and, failing
that, judicial determination. Outside mediation of land conflict is increasingly
being used in the Third World. It is to be distinguished from traditional
processes, even though they also often require voluntary acceptance of
decisions. UNTAET is fortunate enough to have experienced Canadian and
Australian mediators who are working on mediation guidelines with East
Timorese representatives, including Xanana Gusmao itselfhimself. Nevertheless,
training and funding East Timorese mediators will require sustained international
assistance, particularly after UNTAET's mandate expires.
In terms of judicial resolution of land conflict, there
has also to date been relatively little capacity-building. Currently,
all land disputes fall directly within the jurisdiction of the District
Court. The District Court judges have received some training, including
a two-day program by the author in December 1999. But events have illustrated
what is all too easy for Western lawyers to overlook, namely that an effective
judiciary requires not only training and experience but substantial social
and political support. The lesson for Australia is that capacity-building
should not simply focus on training, but should also ensure, through close
consultation and monitoring, that the conditions for an effective institution
have also been developed.
Economic Development
Investors-both foreign and domestic-have been pressing
for a quick resolution of land titling issues. But it is hoped that the
foregoing analysis has shown that providing sufficient land certainty
for economic development is inseparable from all these preceding issues
of land claims, land administration and conflict resolution. It is tempting,
particularly for non-lawyers, to argue for a clean slate: to allocate
lands and titles afresh, and to facilitate urgently needed investment
by legislating away all prior claims. Indeed, there is some talk of nationalising
land for this purpose. But postcolonial experience shows that there is
no magic wand solution to intractable land conflict. Certainty cannot
be restored simply through state fiat. Institutional decisions will be
ineffective without ground-level support. Reconstruction cannot occur
without a stable foundation of property ownership accepted by most East
Timorese. Ultimately, there is no alternative to a principled, transparent
land claims process.
Major Projects
One possibility, which in mythe author's view should
be considered, is that a category of 'major projects' be established.
Such projects would receive a state guarantee of title and all valid competing
claims would, at best, receive alternative remedies of compensation or
substitute lands. This is essential for large-scale investment as currently,
without a state guarantee, there is no hope for certainty of title until
a legal and institutional framework is developed to determine competing
land claims. Of course, such an approach must be developed and supported
by East Timorese groups and, in particular, land-holders potentially affected.
If not, there is a risk of allegations of favouritism towards major investors
at the expense of local land-holders, and perhaps of social unrest at
sites of major projects. Certainly, if it were appropriate, this state
guarantee benefit should only be made available where the project involves
a certain level of investment, and employs a minimum number of East Timorese.
Australia could help develop this mechanism by assisting with a compensation
fund to underpin the 'major projects' guarantee.
Sustainable and Equitable
Development
This type of major projects approach may only be temporary,
and would likely do little, in the longer run, to promote sustainable
and equitable development. The perennial challenge of for postcolonial
countries is to allow participation of poor and traditional groups in
economic development. The Indonesian experience itself shows that authoritarian
top-down development often lacks sustainability, and certainly encourages
corruption and environmental destruction. How, then, can a land system
be established to promote broad-based sustainable development?
Commonly, in postcolonial countries, legitimate concerns
that economic development on traditional lands will lead to landlessness
and exploitation have been met by a prohibition on outsiders directly
dealing in customary land. Dealings in customary land are thus only valid
as between members of a customary group. Outsiders can only gain an interest
in traditional lands by way of compulsory acquisition by the state. This
system may work relatively well where the government is democratic and
accountable, but fails utterly when state officials are authoritarian
and corrupt. In particular, it engenders a vicious cycle where investors
eschew paying market price to traditional owners, in favour of acquiring
title through corruptly suborning state officials to expropriate the land
at below-market values.
One possibility, of course, is to prohibit dealings by
outsiders in customary land, and for the state to renounce any rights
of expropriation. But this is rarely politically acceptable, particularly
when the land in question has economic value; and, in any event, prevents
traditional land-holders from using their land to raise credit or capital
for their own uses. Hence, this paper suggests a third way, which involves
allowing direct negotiations between customary land holders and economic
investors through mandatory use of template agreements. Such agreements
may take many forms, and will differ according to their subject matter
(mining, timber products, fisheries etc.). In essence, however, the legal
framework would have five common elements:
- allowing customary groups to grant long term leases over their land
to outsiders;
- providing that leases and ancillary agreements are to be invalid unless
they follow a template form;
- developing template agreements to provide for community benefit packages,
including health, education and infrastructure development, future generations
trusts, and methods for distributing compensation funds or royalties;
- monitoring of such agreements by an independent statutory authority;
and
- providing special credit institutions which allow such leases to be
used as security for loans.
Indeed, this template approach may even be used by the
customary group itself to raise capital for its own economic purposes.
Hence, for example they may grant a state-guaranteed lease to itself (as
an incorporated body), and such a lease, being free in formal terms from
any underlying disputes within the community as to title, could then be
used to obtain credit or obtain outsider joint venture participation.
Conclusion
It is hoped that in its short compass this paper establishes
a fundamental point, namely that a major historical opportunity exists
for East Timor, with international assistance, to establish a land system
that will avoid or mitigate the intractable and systemic land conflicts
apparent in parts of the Third World. Australia is particularly well-positioned
to play a part. It is a repository of considerable expertise on East Timor.
It is not bound, as Portugal may be, to support UDT through outright reversion
to pre-1975 titles. It has substantial native title expertise in areas
relevant to institutional development in East Timor. Perhaps most importantly,
there are Australians in significant positions in the UNTAET Land and
Property Unit. Asserting these advantages, and ensuring that sufficient
money and attention is provided to East Timor's land system, will be time
and money well spent in Australia's strategic interests.
Endnotes
- For reasons of space this paper does not consider housing issues,
notwithstanding that these also are particularly pressing in the early
stages of East Timor's reconstruction.
- UNTAET Agricultural Unit, Mini Brie- Agriculture, 17 February
2000, Dili, UNTAET p. 1.
- Joachim Metzner, Man and Environment in Eastern Timor, Australian
National University Development Studies Centre Monograph Number 8, ANU,
Canberra, 1977, p. 116.
- UNTAET Agricultural Unit, op. cit., p. 1.
- Metzner, op. cit., p. 116.
- Personal communication with Bob Churcher, Head of the UNTAET Infrastructure
Unit, 18 February 2000.
- Personal communication with Bob Churcher, Head of the UNTAET Infrastructure
Unit, 18 February 2000.
- Yayasan Hak, The Politics of Agrarian Disputes in East Timor: the
Struggle for Land Rights and the Right to Self Determination, Yayasan
Hak, Dili, undated, copy on file with author, pp. 1-3.
- In early 2000 Australia negotiated transitional arrangements with
UNTAET concerning matters formerly governed by the Timor Gap treaty.
UNTAET's authority to agree to these new arrangements, on behalf of
the East Timorese people, arises from its UN Security Council mandate.
The new arrangements essentially agreed to continue the terms of the
Timor Gap treaty, with appropriate substitution of East Timor for Indonesia,
until a new agreement can be negotiated: see generally D. Rothwell and
M. Tsamenyi eds., The Maritime Dimensions Of Independent East
Timor, Wollongong Papers on Maritime Policy, Centre for Maritime
Policy, University of Wollongong, Wollongong, 2000.
- George Aditjondro, In the shadow of Mount Ramelau : the impact
of the occupation of East Timor, Indonesian Documentation and Information
Centre, Leiden, The Netherlands, 1994, pp. 55-56.
- For example, the people of Los Palos, in the easternmost part of East
Timor, reportedly resent what they allege to be a lesser degree of resistance
to Indonesian rule in some Western parts of East Timor: see UNAMET,
Summary Situation Report for Los Palos, The Los Palos Regional Social
Structures, Dili, Sept 1999, copy on file with author, p. 2.
- Shepard Forman, 'Descent, alliance and exchange ideology among the
Makassae of East Timor', in James J. Fox ed., The Flow of Life: Essays
on Eastern Indonesia, Harvard University Press, Cambridge, Massachusetts,
1980, pp 152-177; James Dunn, Timor: a People Betrayed, ABC Books,
Sydney, 1996, pp. 4-5.
- Kevin Sherlock, East Timor: Liurais and Chefes de Suco: Indigenous
Authorities in 1952, The Author, Darwin, 1983, p. 15.
- Forman, op. cit., p. 5.
- 'Pro-autonomy' supporters were East Timorese who supported the ballot
option of greater autonomy for East Timor within the Indonesian state,
and opposed calls for independence.
- On 2 December 1999, UNTAET Regulation No 2 had established the National
Consultative Council (NCC), a body intended to be the 'primary mechanism'
for participation of East Timorese representatives in UNTAET decision-making
processes. The NCC had fifteen members: seven from CNRT (including Xanana
Gusmao), one from the Catholic Church, three from political groups outside
CNRT who supported autonomy rather than independence, and four from
UNTAET. The function of the NCC, in particular, was to provide advice
and policy recommendations to UNTAET's Transitional Administrator (article
3). In practice, the NCC considered draft regulations put forward by
UNTAET prior to their promulgation, but it did not, in terms, possess
any power to amend draft regulations or put forward any regulations
of its own, and it lacked any secretariat to provide technical expertise
and advice.
- Personal communication with members of East Timor's Yayasan Hak ('Rights
Foundation'), Dili, 20 February 2000.
- Personal communication with members of East Timor's Yayasan Hak ('Rights
Foundation'), Dili, 20 February 2000.
- The first Portuguese traders actually arrived in Timor in the sixteenth
century. In 1701, the first Portuguese governor was appointed. However,
dispossession did not begin in earnest until the 1900s as, until then,
Portuguese settlements were largely on the coast, and the hinterland
served only as a site for tax and trade: see Geoffrey Gunn, Timor
Loro Sae: 500 Years, Livros do Oriente, Macau, 1999, p. 192.
- Dunn, op. cit., at p. 196-7.
- Ibid at 197, citing Yvette Lawson, East Timor: Roots Continue to
Grow: A Provisional Analysis of Changes in Foreign Domination and the
Continuing Struggle for Freedom and Independence, University of
Amsterdam, Amsterdam, August 1989.
- Aditjondro, op. cit., p. 55.
- See Daniel Fitzpatrick, 'Beyond Dualism: Land Acquisition and Law
in Indonesia', in T. Lindsey ed., Indonesia: Law
and Society, Federation Press, Sydney, 1999, pp. 74-94. See also
Daniel Fitzpatrick, 'Disputes and Pluralism in Modern Indonesian Land
Law', Yale Journal of International Law, vol. 22 no. 1, Winter
1997, pp. 171-212.
- Klaus Deininger and Pedro Olinto,'Implementing Negotiated Land
Reform: Initial Experience from Colombia, Brazil and South Africa',
a paper presented at the International Conference on Land Tenure in
the Developing World, University of Capetown South Africa, 27-29 January
1998, p. 1.
- Paulino da Cruz, Studi Tentang Penguasaan dan Penggunaan Tanah
Bekas Hak Portugis yang Ditunda Konversinya Dengan PP No. 34 Tahun 1992
di Kabupaten Dili Propinsi Timur-Timur, ('Study concerning the Control
and Use of Former Portuguese Title Land that was Converted under Presidential
Decision No. 34 of 1992 in the Dili Region of East Timor Province'),
thesis completed at Sekolah Tinggi Pertanahan Nasional Yogyakarta, ('National
Land College, Yogyakarta'), 1999, p. 44. Copy on file with author.
- See Indonesian Government Regulation No 18 of 1990; see also Government
Regulation No. 34 of 1992.
- da Cruz, op. cit., at 44.
- This is a difficult international law issue, not canvassed in this
paper, relating to the status of legal acts by a 'belligerent occupier'.
- Personal Communication, 25 February 2000.
- UNTAET Regulation No. 27 of 2000, On the Temporary Prohibition of
Transactions in Land by Indonesian Citizens not Habitually Resident
in East Timor and by Indonesian Corporations.
- Personal Communication, Bernard Collaery, Legal Adviser to Xanana
Gusmao, 5 January 2000.
- The legal principle of adverse possession holds generally that title
to land can be obtained through long term peaceful occupation where
the original owner has either not disputed that occupation or allowed
it through an agreement such as a lease.
- Under colonial Portuguese land law, traditional rights to land received
limited recognition as an occupao (occupation) right. This right
could not be registered or mortgaged: personal communication with an
East Timorese formerly employed in the land titles office under the
Indonesian administration, 15 February 2000.
- In general terms, indefeasibility under the Torrens system protects
registered titleholders from any claim by an unregistered interest holder,
unless the registered titleholder has committed fraud or is subject
to some personal obligation to the claimant.
- See, for example, Antônio Salazar, P. Brandão and Gershon
Feder, 'Regulatory policies and reform: the case of land markets'
in Claudio Frischtak (ed.), Regulatory Policies and Reform:
A Comparative Perspective, World Bank, Washington, December 1995,
pp. 191-209.
- See for example AusAID Project Brief, Thailand: Land Ownership
Reduces Poverty, at http://www.ausaid.gov.au/publications/proj/projbrf03.cfm
(19 January 2001).
- See S.R. Simpson, 'Land Problems in Papua New Guinea' in S.R. Simpson
et al Eds, Land Tenure and Economic Development: Problems and Policies
in Papua New Guinea and Kenya, New Guinea Research Bulletin Number
40, New Guinea Research Unit, Australian National University, Canberra,
1971, p. 1; S.R. Simpson, Land Law and Registration,
Cambridge University Press, Cambridge, New York, 1976; Jack Knetsch
and Michael Trebilcock, Land Policy and Economic Development in
Papua New Guinea, Institute of National Affairs Discussion
Paper No. 6, Port Moresby, 1981.
- See for example Norman Oliver, Land Mobilisation Programme: Review
of Land Dispute Settlement Organisations and Mechanisms, Government
of Papua New Guinea Department of Lands and Physical Planning, Port
Moresby, 30 April 1995. Copy on file with author.
- This at least was the opinion of Professor Jim Fox, a leading anthropological
expert on East Timor, in personal communication in April 2000.
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