27 June 2009

New Brazilian Land Law - Lessons for East Timor?

ETLJB 27 June 2009 - As the Government of East Timor begins public consultations on a new draft land law which anticipates acknowledging possession as the basis of the acknowledgement of lawful title by the state, Brazil has enacted legislation that will grant more than a million land titles based on possession of state land.

A report from Reuters states that "[the] law will likely hand over ownership for 166 million acres (67.4 million hectares) in the Amazon, an area bigger than France, to individuals who can prove they have been occupying the public land since December 2004.

The distribution of plots will be based on good faith affidavits by claimants that they occupy an area. Authorities will not carry out on-site checks of such claims on plots under 990 acres."

The President vetoed articles of the bill that would have allowed companies to take over land.

For the last 30 years, settlers, farmers and speculators in the Brazilian rainforest have occupied and sold state land they did not own, fueling the destruction of about a fifth of the world's largest rain forest. Land titles are often nonexistent or fake.

Reuters reports that "the law will benefit impoverished peasants who were encouraged to settle the Amazon during the 1964-1985 military dictatorship but were never provided with legal support, public security or financial aid.

The new land owners, who will have to pay taxes and follow environmental regulations, are expected to help environmental regulators crack down on squatting and deforestation, as well as fund better enforcement efforts in remote Amazon areas."

However, the draft land law in East Timor does not permit any acquisition of title to occupied state land. Draft Article 7 provides, amongst other things, that: (Properties located within the public domain of the State) 1. The ownership right shall not be granted to an ownership claimant of a property located within the State's areas of public domain.

This exclusion would apply to traditional communities occupying what is formally state land but in respect of which customary land tenure systems have existed since time immemorial. The denial of customary land tenure systems status as legitimate land rights under the law raises serious questions for those communities that occupy them. There is some limited provision in the draft land law relating to communal lands but ultimately, it is the government that, under the present draft Article 26, will have the final say on who may use communal lands in East Timor with only an obligation to consult with the relevant traditional community.

Furthermore, traditional communities in East Timor do not have the status of a legal entity for the purposes of the draft land law. Article 19 provides that only national legal entities may hold the right of ownership. There is no law that confers corporate status on traditional communities and so it is impossible for them to hold their lands.

The future of customary land tenure systems is not assured by the new draft land law which reflects a policy of denial of the legitimacy of those land systems.

The failure of national legal systems to adequately recognise and protect the land rights of indigenous communities has had devastating impacts in other parts of the world. Under the dictatorship of Soeharto in Indonesia, the military was deployed to depopulate indigenous peoples' land to permit the exploitation of forest resources by external parties such as the holders of forestry or mining concessions or oil palm plantation developments. In many cases, these indigenous communities and their age-old land tenure systems were annihilated. To East Timor's southeast lies its other gigantic neighbour - Australia - whose indigenous people suffered one of the worst genocides in human history as land was commoditised and granted by the Crown to the invading Europeans. These lessons have not been heeded in East Timor. There is no effective advocacy on behalf of traditional communities.

Whether the government has the fortitude to engage with traditional communities in East Timor in the public consultation process it is currently undertaking remains to be seen. It will be a difficult task explaining to the traditional communities that the new law does not recognise their customary land rights as juridical rights and that this new law will entrench the dominance of the state in the decision-making process about the exploitation of traditional lands in East Timor.

Warren L. Wright
Sydney 27 June 2009

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