Addressing the past, building the future: Land rights challenges in Timor-Leste
Land tenure security is a complex problem in Timor-Leste. The recently approved Land Law can be a breakthrough to address this problem, but it also raises concerns. For now the law is waiting for the constitutional review ordered by the President.
Land tenure insecurity is a common problem in many developing countries. In Timor-Leste, a small country located at the southeast end of the Indonesian archipelago, a combination of the most common factors contributes to wide spread land tenure insecurity across the small half-island state. Waves of colonial rule, conflict, and authoritarianism preceding the nation’s independence in 2002, left a chaotic situation regarding land rights. Land titles issued by the Portuguese colonial administration overlap with Indonesian land titles, of which the central records were destroyed after the independence referendum in 1999. Conflict has generated waves of land abandonment and occupation; and perhaps most importantly, long-term land possession and the customary land systems that continue to serve the great majority of Timorese have never received any significant recognition in law.
Since independence, little has been achieved to strengthen land rights for the Timorese. In fact, legislation approved soon after independence concentrated immense power in the state rather than addressing past grievances and expanding land rights to those who had never before had any legal protection. A survey conducted by the Van Vollenhoven Institute and The Asia Foundation in 2016 found that, based on current laws, at least 45 per cent of households in the capital, Dili, and more than 80 per cent in two rural districts have no legal rights to the land where they live and are at risk of state eviction without any legal right to compensation. Some politicians have justified this draconian state of affairs by arguing that the state needs to ensure quick and cheap access to land in order to implement key infrastructure projects that will help the country to develop. Whilst in some cases state agencies have in fact paid compensation to customary land owners, in many cases the lack of land tenure security has been deliberately used to dispossess families who have been using land for generations, without any compensation. Those without land titles from Portuguese and Indonesian times – often the poorer households – end up losing the land they depend upon for their homes and livelihoods to infrastructure projects that serve the entire country.
After many years of political impasse, the approval of a new Land Law and Expropriation Law by the Timorese Parliament can be a breakthrough. The new Land Law attempts to address past land-related problems by providing a legal solution for the overlap of formal land rights, establishing rules for recognising long-term land use and informal land rights, and allowing the recognition of community land rights. The Expropriation Law establishes a process and limits for those cases in which private land is forcibly acquired by the state for public purposes.
While the approval of the Land Law represents progress in the protection of land rights in Timor-Leste, some details have raised concern among civil society organisations and academics. First of all, communities forcibly displaced by the Indonesian administration are excluded from the long-term land tenure protection established in the Land Law. Secondly, the current version of the law lacks protection against evictions for poor families without a land title, deferring the regulation of this matter to future regulations. The criteria established in the law for the recognition of land rights excludes those whose land possession started after 1999 (the year Indonesia withdrew from Timor-Leste following the vote for independence). According to the above-mentioned survey, this provision excludes at least 28 per cent of households in Dili. Initial drafts of the law established mechanisms for protection against the eviction of poor families, but this provision was watered down in later drafts.
The approval of the law, as it is, poses a dilemma to the Timorese President regarding whether to promulgate or veto it. Whilst not perfect, this law would improve land tenure security for a significant number of Timorese, especially compared with the existing legislation. On the other hand, a lack of full protection against eviction in the law would still leave a significant number of Timorese without sufficient legal protection. Furthermore, the President will have to consider whether the Timorese public administration and justice system will be capable of implementing this complex legislation, and address the disputes that will be raised in the process. For now, doubts regarding the constitutionality of some of provisions of the Land Law made the President send it to court for constitutional review.
2017 could be a make-or-break year for land tenure security in Timor-Leste. With parliamentary elections scheduled for July 2017, a failure to approve the land law package soon would mean more years of delay and land tenure insecurity for those who need it most. As the Timorese Parliament look to the future of land rights in Timor-Leste, let’s hope they bring those who have suffered from its messy past with them.