ETLJB 12 July 2009 SYDNEY - The question of security of tenure for customary land tenure systems has been a crucial issue facing traditional communities throughout the world as they confront the forces of modernisation and global capital.
In many places - both in the developing world and in the history of the great western democracies - indigenous peoples' land has been seized by colonisers or confiscated by the modern State for natural resource exploitation and political and economic domination. Entire communities and their unique cultures have been annihilated in these processes and indigenous people have been powerless to challenge the intrusions and appropriation of their customary lands because their land tenure systems were not conferred with juridical status by the legal system. This left traditional communities vulnerable to extinction - along with their ancient land management and ownership customs and law.
In East Timor, traditional communities are about to face the full force of the state's assertion of control and ownership of customary land in East Timor. This was instituted by the 2002 Constitution which mandates the fundamental right of the state in relation to the land and resources in East Timor:
Article 139
(Natural resources)
1. The resources of the soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone, which are essential to the economy, shall be owned by the State and shall be used in a fair and equitable manner in accordance with national interests.
2. The conditions for the exploitation of the natural resources referred to in item 1 above should lend themselves to the establishment of mandatory financial reserves, in accordance with the law.
3. The exploitation of the natural resources shall preserve the ecological balance and prevent destruction of ecosystems.
While this provision pays due regard to the environmental dimensions of natural resource management, it is silent on the cultural aspects which have existed since time immemorial over much of the land in East Timor.
This is so even though the Constitution also requires the state to respect the customs of the country by Article 2 (4) which provides that: The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law.
It has been argued that this provision means that customary land tenure systems must be recognized by the state. But that is not the plain and ordinary meaning of the words of this provision which subject this state obligation to the proviso that the relevant norms and customs are not contrary to the Constitution. As noted above, the Constitution empowers the state to deal with natural resources in the “soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone” of the country. This includes resources located within the territories of customary land tenure systems. In this way, the Constitution is the basis for the lack of juridical recognition of these land tenure systems that are based on the customs and norms of East Timor.
The new draft land law does not deviate from this policy in so far as it relates to what it defines as community land: “land in areas where a local community organizes the use of the land and other natural resources by means of norms of a social and cultural nature.”
Clearly, the constitutional state control of natural resources by Article 139 is inconsistent with if not contrary to the customary communal control of resources which must therefore fall in the face of the Article 139 leaving no basis for the assertion of the legal status of customary land tenure systems in East Timor.
The relevant provisions in the draft land law that touch on communal land tenure systems in East Timor are set out below.
CHAPTER V
COMMUNITY LAND
Article 23
(Definition)
1. Community land is considered to be land in areas where a local community organizes the use of the land and other natural resources by means of norms of a social and cultural nature.
2. The National Property Cadastre shall identify areas that are considered as
community land.
Article 24
(Local community)
Local community means a grouping of families and individuals living within a territory at the level of a village or smaller, which aims at safeguarding common interests through the protection of housing areas, agricultural areas, whether under cultivation or not, forests, sites of cultural importance, pasture land, sources of water and areas where there are natural resources, the use of which is shared.
Article 25
(Customary norms and practices)
1. On community land, local communities participate in:
a) The management of natural resources;
b) The resolution of conflicts relating to the use of natural resources;
c) The identification and definition of the boundaries of the lands they occupy.
2. In the exercise of the activities referred to in items a) and b) of No. 1 of the present article, the local communities utilize customary norms and practices.
Article 26
(Protection)
1. The State shall protect community land, preventing undue appropriations, the indiscriminate and unsustainable use of natural resources and real estate speculation.
2. The Government shall consult with the local community before authorizing third parties to use land in the community land areas.
The critical provision is proposed Article 26(2). The government’s constitutional authority and control is the basis of this provision which only requires it to consult with local communities over the exploitation of natural resources within customary land tenure territories. There is no obligation to pay compensation for the loss or despoliation of customary land. No juridical status is conferred on the local traditional authority structures or on the traditional land tenure systems.
This exposes traditional communities to the same type of treatment they received during the Soeharto dictatorship – violence and dispossession without just compensation. When the East Timor Defence Force base was being constructed at Metinaro, land belonging to the local community was resumed. This resumption did in substance if not procedurally comply with the applicable Indonesian law on the compulsory acquisition of land in that the only compensation paid was some bags of rice.
When cadastral officers of the then UNTAET/ETTA Department of Justice Land and Property Unit went to survey the land, local residents presented with machetes.
Consistent with the methods deployed during the illegal occupation by the Indonesian state, armed soldiers of the East Timor military and the police accompanied every development in this acquisition of traditionally-held lands on the outskirts of the capital.
This set the precedent for how community land was to be dealt with by the East Timorese state and this policy is continued and entrenched in the new draft land law.
Grievances caused by the unjust acquisition of land and property by the state do not go away even when the threat of deadly force is deployed by the state to suppress the conflict thereby generated. In fact, those grievances simmer on for many years - and down through generations. The government of East Timor and its policy advisers know this well. The most notorious land conflict in East Timor - the Watu Lari case - has caused the outbreak of violence and killings several times over the decades it has been developing with no resolution from the state.
In fact, such conflicts pose a grave danger for social stability, the civil peace and harmony between the community and the government as well as for the human rights of traditional communities.
More serious attention needs to be focused on the issue of customary land tenure systems in East Timor as the country tries to settle its many complex and long-standing land conflicts.
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