When is it fair for the State to take private land?
28 April 2010
Ligasaun ba pajina ida ne'e iha Tetum.
For more on land issues see our other web pages:
Who will get land under the draft transitional Land Law? – Provides information on who will get land under the Land Law, major changes since the first draft, and issues of concern.
Transitional Land Law (also Tetum) – Includes various drafts of the law in three languages, submissions and information on the public consultation process.
Land Compensation – Explains compensation processes under the draft Land Law and Expropriation Law. Also outlines La’o Hamutuk’s concerns with the draft Real Estate Finance Fund law.
When is it fair for the State to take private Land? – Analysis on the draft Expropriation Law which allows the State to take land for public purposes and private companies, with few limitations.
RDTL Strategic Development Plan 2011-2030 – Threatening Land Rights section explores the government’s plans to claim over 22,000 hectares of land, which many people depend on for daily needs.
La'o Hamutuk Bulletin February 2010 (also Tetum) – Articles on Land Justice in Timor-Leste, Transitional Land Law, and Public Consultation on the Land Law.
Land Processes in Timor-Leste (also Tetum) – An overview of land-related processes currently taking place. This includes documents, commentary and analysis from various sources.
LH submissions to Parliament about draft Lei ba Rai no Lei Expropriasaun, (Tetum, September 2011)
Can distributing Effective Registration Certificates resolve the land problem? (also Tetum, December 2011)
President Vetoes Three Land Laws March 2012
Land Network members take their concerns to the Prime Minister...
and to Fernanda Borges, President of Parliamentary Committee A.
Expropriation is when the State compels someone to sell their property, to use it for public use or benefit.
Governments have expropriated land for projects such as airports, roads, dams, electrical networks, civil servant housing, privately owned plantations, shopping centres and industrial facilities. Other terms used for this process are "eminent domain" and "compulsory acquisition."
How can the State access land for public needs? This is a central question for Timor-Leste, especially as the Government socializes its Strategic Development Plan. In many countries expropriation comes with conflict and human rights violations, often causing the most poor and vulnerable people to lose their homes, land and livelihoods. Unnecessary expropriation can mean that projects of genuine local benefit are resented rather than welcomed, because community views and alternative sites were not considered. Corrupt systems allow officials to take prime land and turn it over to private interests. In Cambodia, tens of thousands of people are threatened with eviction as the State takes land for projects such as luxury hotels and apartments.
Expropriation is a delicate balance between State power, communal needs and an individual’s right to property. Too often this balance is tipped in favor of those with more power or influence. Many Timorese people have experience of corrupt and unfair expropriation during the Portuguese and Indonesian regimes.
Despite these far-reaching impacts, Timorese people were not given the chance to share their concerns or ideas about a fair expropriation process before the draft law went to Parliament. On 6 April 2010, the Government presented this draft law as part of a “land package,” hoping that by linking it with the Land Law – which has had extended public input - it would pass easily (see Transitional Land Law). We suggest that Parliament should send this draft law back to the Ministry of Justice for public consultation.
We welcome further analysis and commentary from all sources.
What is in the draft Expropriation Law?
The draft law focuses largely on the prices which will be paid for properties, providing different ways that people compelled to sell their land can get a fair price. It does not integrate processes to ensure that expropriation is only used in rare and exceptional cases. Because there are few limitations on what can be defined as “public interest,” this term could be open to abuse. Local communities have very few opportunities to participate in decision-making. While the proposed Land Law guarantees families up to 18 months to find new homes before they are evicted, the draft Expropriation Law does not have the same protections.
The draft law does not require the State to prove it has exhausted all other planning options: such as building a road around a village, not through it.
The proposed expropriation process:
The Council of Ministers approves a Declaration of Public Interest, which allows the expropriation process to begin. “Public interest” is poorly defined. This can be for State or private company use.
A site assessment evaluates who should get damages and how much.
The State tries to buy the property and negotiates on price.
If owners do not want to sell, the State expropriates the property and pays damages.
People can appeal in court for more money if they feel damages paid were unfair.
- If the project does not go ahead, the owner has first preference to buy back the property – but not at the same price they sold.
Fast-track expropriation does not have to follow this process in emergencies (which are not defined) or when property is needed for defense purposes.
La’o Hamutuk believes that meaningful public consultation is the best way to develop rules for expropriation. Below we outline some key areas we think should be discussed in developing an Expropriation Law (and are not in the current draft).
Clarify public interest - some countries clearly define public interest uses, others place limitations. What is the best approach for Timor-Leste? There should also be a process to appeal whether projects are in the “public interest.”
Exhaust all possible alternatives to expropriation, by guaranteeing opportunities for people to propose alternative sites and amend or appeal planning decisions.
Ensure maximum accountability of project planners, by publishing in the media intentions to expropriate and paying expropriation costs from project budgets, not a separate pool of money (Financial Real Estate Fund) (as in the current draft).
Identify special processes for customary groups, sacred sites and places of local cultural/historic importance.
Ensure protections to meet international human rights standards – such as ensuring that adequate housing and livelihoods will be available before they are evicted. Affected people should have the right to participate in decision-making, and voice their needs and preferences.
Taking land for private companies
Can or should land be expropriated for company use - does job creation or private sector development justify the “public interest”? Companies frequently exaggerate their project benefits. In 2008 Australian company EDA offered to create 30,000 jobs from jatropha production – LH calculated 20,000 of these “jobs” paid just 8c a day. Whether the State can expropriate land to give to private companies, and in what circumstances, is an important issue for public discussion.
Submissions to Parliamentary Committee A are due the last week of May 2010. Submissions can be made in Tetum, Portuguese, English or Bahasa Indonesia.