28 April 2013

Community Land in East Timor: Compensation for Acquisition for Public Purposes

ETLJB 28 April 2013 - A recent press release from the Government of East Timor reported that an agreement had been reached regarding the surrender of 1,113 hectares of community lands in Covalima District for the public purpose of a government supply base. The press release stated that the agreement had been reached after a long period of consultation with the local community. It also noted that the the benefits for the community from the supply base project would "come in the form of jobs for local people during both the construction and operational phases, landowners are to be recompensed through a 10% share of profit from the project." In addition, the press release asserted that that compensation "is a far more significant share than has been offered to traditional landowners in other countries including Australia."

The reference to the system of compensation to traditional landowners in Australia is an interesting one that warrants some closer consideration and scrutiny.

Firstly, it is not really apposite to compare the relative positions of traditional land owners in East Timor and Australia. This is because in Australia, the ownership of land and the existence of other rights over land by indigenous Australians such as fishing, hunting and gathering, sacred sites and so forth are actually enshrined in the law. In addition, there are juridically-constituted entities such as indigenous land councils that represent and act on behalf of the indigenous communities when the government wants to acquire traditional lands for public purposes or private enterprise wishes to exploit natural resources on native title lands or undertake pastoral or tourism ventures on native title land. All of this puts the Australian indigenous communities in a much stronger bargaining position vis-a-vis the state or private capital whereas neither of those things exists in East Timor. There is no law that acknowledges community land ownership or that constitutes bodies to represent the communities who have owned the land (in so far as ownership of community land can be approximated to the Western legal notions of property ownership) since time immemorial.

In Australia, following the famous Mabo decision of the High Court in 1992 that native title continued to exist on the continent, the Native Title Act 1993 (Cth) enable Aboriginal people to lodge claims for native title. Native title is a concept recognised by the common law and legislation which establishes that a particular group holds specific native title rights and interests.

There is no such law or jurisprudence in the legal system of East Timor. Furthermore, if any Australian government acquires the native title land absolutely for a public purpose, then it is liable to pay just compensation to the community - with just compensation being the current market value of the land.  Current market value is the international standard for compulsory acquisition of property and, in the case of the federal Government in Australia, it is constitutionally-bound to pay compensation on just terms. Again, there is no such law or jurisprudence in East Timor.

There is a host of other questions arising from this development. For example, with whom did the Government of East Timor negotiate? Who represented the affected communities and what rights did they have to enter into agreements with the government about the community's lands? Was the community afforded access to legal advice? Was the agreement written in a language that is understood by the community? What exactly are the terms of the agreement and what happens, for instance, if no profits are generated from the project? Ten percent of nothing is nothing.

What are those profits and how are they expected to be generated? How will the 10% be held, managed and distributed for the benefit of the community? Have the community's land rights been extinguished forever or do some rights continue to co-exist with the rights that have been ceded to the government by the agreement?

All such questions are comprehensively dealt with under the law in Australia. 

It is, therefore, in this writer's view, disingenuous of the government of East Timor to draw any comparisons to the traditional land ownership in East Timor and that in Australia. 

Author: Warren L. Wright. Fomer Solicitor to the NSW Aboriginal Legal Service, former UNTAET Property Rights Adviser; former Senior Legal Officer, NSW Land Titles Office.

No comments: