07 July 2013

Communal land in East Timor - A $1.3 billion lesson from Australia

ETLJB 7 July 2013 - Earlier this year, the government of East Timor and the community of Kamanasa Suco on the southern district of Suai "celebrated" an agreement whereby the community would surrender a large tract of 1113 hectares of customary land to the government for a government project; namely, the Suai supply base and industrial park.

The government of East Timor boasted in a press release that the benefits to come [to the community would be] "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."

The government press release also asserted that "[t]his is a far more significant share than has been offered to traditional landowners in other countries including Australia."

I took issue with this situation and the assertions made by the Government of East Timor and wrote in an earlier post that" [c]ommunity land in East Timor has no juridical status and with no law governing the acquisition of such land by the state for public purposes, communities have no bargaining power to have just compensation paid to them by the state for such acquisitions. 

In a subsequent post, I further expressed my opinion that "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."

Furthermore, I noted that "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?"

It was, and remains my opinion, that it was "disingenuous of the government of East Timor to draw any comparisons to the traditional land ownership in East Timor and that in Australia."

I am reiterating these issues here in this post to point out an unprecedented development in the complex issue of native title in Australia which further demonstrates the vast differences in the ways that laws and policies in Australia and East Timor deal with the issue of the title of indigenous communal land when the traditional owners are facing the state over claims for compensation for the acquisition of their land.

It was reported in the Australian media this week* that, in the state of Western Australia, the West Australian Government has put forward an offer worth $1.3 billion to the Noongar people in a bid to settle native title claims over the state's capital city, Perth and the south west region of the state.

The offer includes the establishment of a perpetual trust into which the government would invest $50 million each year for 12 years and more than 300,000 hectares of Crown land (the equivalent of State land in East Timor) would be held by the trust designed to support social, cultural and economic development of the Noongar population and that if the offer is accepted, it will represent the most comprehensive agreement of its kind in Australian history.

"This is recognition of the unique place the Noongar people occupy in WA's history," he said. It will will put an end to long and expensive disputes.

This case represents a model by which the claims of traditional communities all over the world, including East Timor, should strive to meet.

*  West Australian Government offers Noongar people $1.3 billion native title deal ABC News http://www.abc.net.au/news/2013-07-06/noongar-offer/4803700 Accessed 7 July 2013

Author: Warren L. Wright

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