Who will get land under the draft transitional Land Law?
19 May 2010
Since April 2009, La’o Hamutuk has followed the development of Timor-Leste’s new land laws. We have participated in dozens of meetings with Government, donors, NGOs and communities on the draft transitional Land Law. Although there have been many discussions, most people still don’t know who will get land and who won’t. The complex rules in the draft law make it hard to understand - and in future hard to implement.
La'o Hamutuk has prepared this simple guide to outline who is likely to get land when there is more than one claim.
Rights to land under the draft transitional Land Law
The draft transitional Land Law ranks land claims from strongest to weakest. In this table 1=strongest, 8=weakest. The law says that a person with a valid claim will get a land right only if no one makes a stronger ranking (listed higher in this table) claim. The second strongest claim receives compensation. The third nothing. The State’s right to land is very strong, and people without title have weak rights to land. This analysis is based on the 10 March 2010 draft currently before Parliament. See below for our analysis.
This table simplifies a very complex law. The table does not guarantee who will get land in a specific situation.
|Type of land claim||Explanation|
|1. Public Land|
|Public land is land that the State manages for the public benefit. This includes lakes, beaches, military installations, and natural resources.|
|2. Private State Land|
Art. 6, Art. 8 & Art. 38
|This is land that the State can rent, sell or transfer to others if it chooses. The State gets the right to land it is using*. The State can also claim former Indonesian and Portuguese era State land. Abandoned land also becomes State land.|
|?. Ordinary Adverse Possession|
(as defined in the Civil Code)
|The government will soon propose a draft Civil Code to Parliament. This will include “squatters rights” rules for how people can come to own land through occupying it for a long time. In general, a person must occupy land peacefully and continuously, without the owner asserting their land right – i.e. by asking them to leave or pay rent. These squatters rights will allow people to own land after 5, 10 or 20 years of occupation – depending on the situation.|
These rules contradict special adverse possession (see 6.) which requires someone to occupy land for at least 12 years to gain ownership.
This creates confusion and uncertainty. This is a particular problem for communities whose land ownership was not recognized and someone else was unjustly given a title to their land.
|3. Portuguese or Indonesian ownership title|
Art. 32, Art. 34 & Art. 94
|These titles+ are called hak milik or propriedade perfeita.|
Land owned by non-Timorese people becomes State land unless there is special adverse possession (see no.6).
|4. Customary landholders|
|Traditional land holders who are using their land can get the right to this land.|
|5. Other form of land title + use of the land|
|This applies to a person with a title to use the land (similar to a lease), and who is currently using it. These titles are:|
Hak guna bangunan – the right to build on State land (Indo.)
Hak guna usaha – the right of commercial use of State land (Indo.)
Aforamento – the right to use State land (Port)
This includes titles that would have expired.
|6. Special Adverse Possession|
Art. 8, Art. 35, Art. 42-46
|A person using another’s land peacefully, publicly and continuously since 31 December 1998 can claim this land. They will have to pay compensation. |
A person forced off the land after 26 April 2006 can also claim special adverse possession if they meet all other requirements.
|7. Other form of land title, but not using this land||This includes hak guna bangunan, hak guna usaha, and aforamento titles. |
|8. Other valid land claims|
Above we use the term “person” but these rights also apply to groups, companies and communities.
* The law uses the word possession to talk about land use. Possession can include living on the land, building fences, farming or asking people to pay rent. Chapter III describes possession in detail.
+ Title is an official government document that recognizes a person’s right to use or own a particular area of land.
Where two people have the same type of claim to land - for example an ownership title, the person currently using the land will get the right to this land (Art. 33 & Art. 36).
Under the Constitution a non-Timorese person cannot own land. The draft law clarifies that she/he cannot own land as an individual or as part of a group. If a non-Timorese has a land title and is using the land, the land will go to the State. The person then has the right to a contract with the State to allow her/him to use the land. A non-Timorese person will not get a land use right if they do not have a land title or have a title but are not using the land. This land becomes State land – unless there is a special adverse possessor (Art. 7 & 8).
Compensation is based on the value of the land at the time the successful claimant gained their right to the land. This value is not detailed in the law. In most cases the State pays this cost (Art. 40).
“Neineik, neineik” protecting the elite
So far there have been five drafts of the draft transitional Land Law, and few people know what is in the current draft before Parliament. While there have been some positive developments – such as ensuring that foreign companies cannot own land and providing communities with a more secure land title – the current draft law gives the State a huge amount of power to gain land. It allows the State to claim land that it is not currently using, which could be a very large area of land. The State can claim land in order to rent to private companies, or simply to increase its land-holdings and revenues. This could result in a large number of evictions and land insecurity that leads to social and economic instability. This is counter to the promise that the transitional Land Law will promote economic development and reduce conflict.
La’o Hamutuk is preparing a submission to Parliament on the draft transitional Land Law. These are some of our concerns:
State Land – In draft 1 provisions on community land would have seen over 90% of land as State administered land. This was then changed to allow a private community land title. Initially, all land without a valid land claim reverted to the State. The State could only claim land it was using. The law now allows the State to claim former State land that it is not using, even when others have a valid claim. Former State land covers a large area. The draft Strategic Development Plan outlines the State’s intentions to claim over 22,000 hectares of ex-State land – including land many depend on for daily needs. This will rob many people of land ownership.
Ownership titles – In 1999 80% of land records were destroyed, making it difficult to cross-check records. Academic Daniel Fitzpatrick estimates that between 10 – 30% of Indonesian era land titles were issued corruptly – making it hard to track fraudulent titles. Prioritizing land rights for people with ownership titles, rather than people who have used this land for a long time, will increase evictions. Ministry of Justice advisors recommended against prioritizing hak milik and propriedade perfeita titles above people who have used this land for a long time and had a valid land claim, this advice was not followed.
Community Land – Recognition of community land claims is weak in disputed cases. The uncertainty of the rights of long-term land-users to gain land ownership when someone has an ownership title, will also affect communities (art. 27). For communities who successfully claim land, their right to a secure land title has greatly improved since the first draft. To be realized this right will need to be secured by interim protections and a future law. The World Bank is preparing policy options for a Community Land Law for the Ministry of Justice but does not intend to consult broadly with communities.
Mortgages and Compensation – For analysis see Land Compensation web page.
Special Adverse Possession - The current rules on Special Adverse Possession requires a person to have peaceful and continuous use of land since 31 December 1998 if they are to gain title to land they are using (see Rights to Land under the draft Land Law). The Ministry of Justice estimates that the 1998 cut-off date could lead to thousands of people being evicted across the country. The advantages and disadvantages of using this date, or a later date that would reduce evictions, should be discussed publicly.
Concentrated Land Ownership – The draft Land Law proposes a progressive land tax to prevent any one person or group from owning so much land that it inhibits others’ access to land. A land tax will only work if it is high enough to offset the potential profit people can make from controlling large areas of land. Other options to prevent a land-owning monopoly should be explored.
Lack of detail – Some important details are left out of this law. Details on these decisions are relegated to future legislation – much of which will not go to Parliament.
Private consultants and advisors that draft laws for the Ministry of Justice will play a large role in policy–making, rather than simply translating policy decisions into laws. There is no National Land Policy to guide decision-making.
The law should state:
If compensation is calculated on market or livelihood value
How many years people need to occupy land before they can own it if someone else has an ownership title.
What protections there are for people who live in ex-foreigner owned land to continue living on this land, and if there are options to buy the property.
Whether mortgages must be repaid to the State in regular installments or only if the land is sold to someone else.
Land-related legislation currently being prepared or planned includes laws on Public Land, Private State Land, a Compensation Fund Mechanism, a Mortgage Law, a Tax Law that refers to land tax, a Community Land Law, a law on the Cadastral Commission and the Civil Code (which will decide the day-to-day rules for how land is managed).
Cut-off dates – The law refers to people’s rights to land they are currently using. However, some people will be able to claim their land rights sooner, because the Ita Nia Rai data collection process allows them to gain their land title once the law is passed. Others will wait many years for a land register to reach them – they will have to remain using the land until this time. This could disadvantage people in rural areas, and those who leave their land when they marry, or for study or work.
Making laws reality – The law is so complex that its implementers will find it hard to determine who should get land – this will increase corruption, uncertainty, implementation costs and the length of time needed to resolve land issues. There is still no clear planning process to prepare for many of the needs arising from new land laws. Access to independent information and advice is essential to ensure that people can access their rights under new land laws (see Land Justice in Timor-Leste).
Major changes since the initial draft of the transitional Land Law
|Issue ||Major Changes ||Version where major change was made|
|Version 1 – June 2009: district level public consultation|
Version 2 – September 2009: some sub-district public consultation
Version 3 – November/December 2009: after public submissions
Current draft – Council of Ministers approved, 10 March 2010
|Foreign Land Owners||The law now clearly states that foreigners do not have the right to own land, either as groups or individuals.||Version 2|
|Private State Land|
(Land it can sell, rent or give to others if it chooses)
|Initially the State was entitled to land it was using, but its right to private land was weak. The State's right to private land now trumps almost all other land rights.||Version 3|
|Right to Community Land||The law refers to the rights under the Civil Code for people who occupy land for 5, 10 or 20 years – which could benefit community landholders. However this creates confusion with the terms of special adverse possession.||Version 2|
|Community Land Title||Communities now get a Community Land Title – this provides the same protections as a normal ownership title, except the land cannot be sold or taken to pay a debt.||Version 3|
|Rights for Displaced People|| People displaced by the 2006 crisis can still claim special adverse possession if they lived on their land since 31 December 1998. (But there is no provision extending this same right to other long-term use.)||Version 2|
|Cadastral Commission || The Cadastral Commission incorporates some measures to minimize conflicts of interest. (However accountability issues remain.)||Current draft|
|Minister's right to overturn appeals ||Appeals to the Cadastral Commission go first to the Minister of Justice before the courts. The Minister can overturn the Cadastral Commission. This allows more political interference in land cases.||Current draft|