26 September 2010

Timor's land law: The 'monster' in the room?

Lowy Interpreter by Cillian Nolan - 16 September 2010 12:10PM Cillian Nolan is the International Crisis Group's Dili-based analyst. dEight years after independence, there is still no way to legally buy, sell, or prove undisputed ownership of land in Timor-Leste. When Timor-Leste's Vice Prime Minister Mario Carrascalão quit last week, his resignation letter noted that land ownership had been 'transformed into a monster' by hidden vested interests.

The need for a 'land law' has been talked about for so long that expectations are high after the Government approved a law on titling in March, now awaiting parliamentary approval. Few have read the complex law, which would establish the first ownership rights in a country that has inherited overlapping titles from Portuguese and Indonesian administrations. There's little data on how much of the country's land is subject to overlapping claims — many of the country's land records were destroyed in the violence surrounding the 1999 referendum.

A greater difficulty than reconciling these claims may be accommodating formal titling with the reality that the vast majority of the country's land remains under customary ownership, meaning communities turn to traditional leaders for guidance on usage and ownership.

In many areas, these long-standing customary rights are stronger than any formal title. In Dili, members of the former vice-prime minister's own influential family recently took a local leader to court for distributing land not far from the airport to residents in need of housing. He says it's 'empty land', but the Carrascalãos claim ownership based on an old Portuguese title.

In the country's second city, Baucau, state-owned land around an Indonesian-built gymnasium is contested by at least two communities: one believes it has rights to sell the land, while elders from another want to distribute it for free.

Evictions and resettlement will remain a challenge for the Timorese state. Efforts to enforce a 2003 law on state ownership of property have often failed. Compensation has been ad hoc and set bad precedents. After thousands of families whose homes were destroyed in the 2006 crisis were paid $4500, it is now difficult to resettle anyone for less. A constitutional right to housing exists, but there is no policy or funds to address this obligation. Not one displaced person re-settled after the most recent crisis was provided with government housing.

In rural areas, the issues are different. To boost agricultural productivity, pre-UN administrations resettled people near the border town of Maliana. This first brought settlers from neighbouring villages and later Balinese transmigrants, who fled in 1999. Since independence, tension over this land has led to violence between two villages (some say it was deadly, others say just an exchange of blows). After repeated mediation failed, the dispute was sent to court, joining the hundreds of 'pending' land disputes that are either caught in the overall judicial logjam or simply awaiting a clearer legislative basis to make a ruling.

As the ICG argued in its recent report, such complexities are not an excuse for more delay, but they should be a warning that something more than just a new titling regime is needed to address Timor-Leste's land problems.

Legally enforceable property rights will protect property transactions, promote economic development, and help consolidate rule of law. Implementing this will require a comprehensive government response, including a better legislative process that leaves behind a clear understanding with the public about the law's content and impact, especially who stands to win and lose from its passage.

Consistent policies for compensating those adversely affected and how to house those evicted are also needed. Mediation needs support, as the courts will be hard pressed to cope with the influx of cases. The social fabric of villages, which has held Timor-Leste together throughout its eight years of weak government, needs to be respected as much as any act of parliament.

See also Timor Leste Land Law and Policy Information Centre

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