Land Processes in Timor-Leste
Updated 11 July 2016
For many people land is the most significant asset they have. Colonialists and occupiers brought unfair land systems designed to favour foreigners and “important peoples” land rights and moved many people off their land. New land processes are needed to resolve the uncertainty over land ownership after hundreds of years of colonialism and occupation, and where public records have been burnt or lost. How land is managed and decisions on who owns land also inform Timor-Leste’s development process. Fair land processes are particularly important to protect the rights of poor people and women and to respect local culture.
In 2008/2009 there are many processes taking place that will have large impacts on how land is managed, yet there has been little public debate on the current land processes. Foreigners have provided most of the technical expertise, particularly in developing a transitional Land Law. The draft Civil Code, the sister to the Penal Code, has already been through public consultation despite there being no Tetum translation. The draft transitional Land Law is open for public comments until 31 August, but the public consultation process falls way short of what civil society has identified as the minimum requirements for an effective public consultation — including adequate time, information on consultation dates, distribution of the law and involvement of civil society.We will continue to add documents and analysis to this page and welcome any further documents, commentary and analysis on land issues from all sources — particularly in Tetum.
USAID Strengthening Property Rights Program
On 1 October 2007 the Strengthening Property Rights program (branded Ita Nia Rai) began, furthering USAID’s involvement in land processes since 2003. The project aims to collect the first 50,000 property claims (of an estimated 150,000 – 200,000) and create systems and structures it can handover to DNTPSC to continue land cadastre. The program is funded to $10 million dollars over five years until September 2012. Through the program USAID say they hope to promote economic development, conflict prevention and sustainable development.
The program has five key tasks:
Data Collection/Land Cadastre
Both the Portuguese colonialists and the Indonesian occupiers issued land titles in Timor-Leste, these systems were developed to give land rights for “important people” and foreigners. In 2003/2004 there was also land claims process for people living on State lands and issue of state leases began in 2004. DNTPSC also undertakes sporadic collection of data on land claims as well as systematic mapping of certain areas of Dili. The Ita Nia Rai program is the first systematic process for large-scale registration of land claims since the restoration of independence.
In November 2008 Ita Nia Rai began pilot programs in Manatuto and Liquiçá to allow people to register a claim to land. On March 2, 2009 Ita Nia Rai extended data collection beyond the pilot area, and is now operating in Manatuto and Liquiça, Baucau and Aileu. Offices in Oecusse, Bobonaro and Dili will follow. Future land laws will decide the policy on land titling, after which the data collected in this process will be used to determine land title. In the interim it is likely uncontested land claims will act as an unofficial de facto land title.
Data collected through the Ita Nia Rai program will provide information to inform public policy and national laws. The transitional Land Law will determine who owns land, after which the Timor-Leste Civil Code, particularly Book III, will administer land. (It cover issues such as inheritance, squatters rights and leases). Although Ita Nia Rai’s proposed framework for a transitional Land Law references customary land, there is a disconnect with the Ministry of Justice overseen draft Civil Code which does not. (Although Ita Nia Rai consulted with various international academics and agencies in drafting recommendations for the transitional Land Law, there was no public consultation). Unlike the Penal Code and the Law on Decentralization, the draft Civil Code was not translated into Tetum for its public consultation near Christmas time 2008/2009. (When a member of the Land Network publicly requested a Tetum translation of the Civil Code and a re-opening of public consultation the Minister for Justice responded that people “need to learn Portuguese.”) Not referencing customary land rights in the Timor-Leste Civil Code could create stronger private land rights than customary land rights. Lack of recognition of customary land rights is not limited to the Ita Nia Rai program but extends to the Ministry for Justice, DNTPSC and broader public discussion on land issues.
Collecting data on private land rights but not adequately protecting customary land rights will create a two-tiered system where some people have land rights and others do not. A clear policy on customary land is needed, although it should also respect there are many different systems for managing customary land rather than simply codifying customary law. Customary land is a pressing issue as the Council of Ministers reviewed the draft Civil Code and the draft transitional Land Law in 2009, and they are being considered by Parliament. (Click here for more information on the Civil Code.)
The draft transitional Land Law (Lei de Terras) was released on 12 June, and the last day for public comments will be 31 August. Ita Nia Rai are waiting for the passing of the transitional Land Law before beginning data collection in Dili (anticipated later this year) where they anticipate laws will be important in resolving conflicts as customary conflict resolution mechanisms are not as strong. A transitional Land Law can significantly reduce conflict in Timor-Leste by clearly outlining who owns land, however it also has the potential to generate conflict, especially if the people feel that the law is not well-suited to the needs of Timor-Leste or that they have not had an opportunity to contribute their ideas and thoughts to this law which is critical to all Timorese people’s land rights. On 10 June the civil society Land Network sent their Minimum Requirements for Effective Public Participation on the Draft Transitional Land Law to the Minister for Justice. This outlined basic measures to ensure a public consultation process to “help promote an effective land regime that is best suited to the needs of the people of Timor-Leste”. Most of these requirements have not been met.
Across the world there are different processes for administering customary land and ensuring that customary land holders have a legal right to land. At the moment there is no policy on customary land, and customary land is excluded from the draft Civil Code (Port). As Timor-Leste is a civil law system (and therefore does not recognize existing customs) it is important that customary land is recognized in the law and that customary land rights are specifically protected.
The Ita Nia Rai program does not collect information on customary land, although program officers have received a lot of interest from rural areas. The program does improve on the 2003/4 process by providing an option for group claims —husband and wives are particularly encouraged to make joint claims. However the evaluation of the Ita Nia Rai pilot programs did not look for qualitative information on group claims and a significant part of the evaluation took place after the project was extended. Evaluation processes did not try to find out why there were proportionately few group claims, analyze the proportion of men/women making group claims, see if the limit of 8 names per claim was problematic or try to understand what impacted people’s decision to make an individual or group claim (except in the case of married couples). Although Ita Nia Rai resources often highlight the program is for urban and peri-urban areas, media commentary by Ita Nia Rai representatives has played up the benefits of data collection for small-hold farmers, most of whom live in customary areas, outside the data collection area.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)