1st Edition
A Sociolegal Analysis of Formal Land Tenure Systems Learning from the Political, Legal and Institutional Struggles of Timor-Leste
This sociolegal study focuses on the political, legal and institutional problems and dilemmas of regulating land tenure. By studying the development of the Timorese formal land tenure system, this book engages in the larger debate about the role of state systems in addressing and aggravating social problems such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement.
Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective based on the author’s experience in Timorese state administration, and through the investigation of five analytical themes –political environment, lawmaking, legal framework, institutional framework, and social relationships and practices– this book studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas emerge, and how the formal system works in practice. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources. The book concludes by highlighting the importance of lawmaking and how abuses of power can be curbed by adequate administrative processes and laws. Finally, it argues that land administration is primarily a political matter. The political dimension of technical solutions must be considered if we aim to achieve fairer formal land tenure systems.
The pertinence of the topics covered, the multi-disciplinary perspective, and the research methodology followed make this book appealing to a variety of readers, including international organizations, practitioners, academics and students engaged in land administration, post-colonial and -conflict issues, lawmaking, rule of law, public administration and issues of access and exclusion.
Chapter 1 - Introduction
Introduction
Framework of analysis - Land Tenure System Analysis Model
Research questions
Methodology
Ethical considerations
Limitations of the research
Outline
Chapter 2 – Formal land tenure systems
Introduction
Formal land tenure systems and other definitions
The roles of land and formal land tenure systems
The characteristics and roles of land
Land tenure, formal land tenure systems, and the goals of the state
Formal land tenure systems and state power
The problems and dilemmas of formal land tenure systems
Problems of formal land tenure systems
Dilemmas of a formal land tenure system
Conclusion
Chapter 3 – Land tenure systems throughout Timor-Leste’s history
Introduction
Geographic and social overview
Historical background
Formal land tenure systems in Timor-Leste
The Portuguese formal land tenure system in Timor-Leste
The Indonesian formal land tenure system in Timor-Leste
The formal land tenure system during the UNTAET administration
The formal Land tenure system since Independence
Conclusion
Chapter 4- The political environment
Introduction
Political parties and land tenure
FRETILIN - Revolutionary Front for an Independent East Timor
CNRT – National Congress for Timorese Reconstruction
‘Development’, high-modernism, infrastructure, and investment
Infrastructure
Private investment
Post-authoritarianism and the authoritarian temptation
Weak rule of law
Indonesian legacy in land administration
Corruption, rent-seeking, clientelism, patronage, and elite capture
Natural resources’ windfall, oil dependency, and the resource curse
Post-colonialism debates
Post-conflict debates and potential for violence
Resilience and prevalence of customary land tenure systems
Conclusion
Chapter 5 – The making of land laws
Introduction
Making land-related laws in Timor-Leste
Looking at the lawmaking process
Legislative agenda
Knowledge production for the lawmaking process
Decision-making
Legal drafters
Consultation and transparency mechanisms
Drafting options and dilemmas
Monitoring and evaluation
Language
Conclusion
Chapter 6 – Land tenure legislation in Timor-Leste
Introduction
Validity of pre-independence rights
Legal recognition of customary land rights
Long-term possession
State land
Definition of state land
Public and Private Domain of the State
Land rights of legal entities
Processes for identifying land claims and addressing conflicting ones
The Process established by Law 1/2003
The Process established by Decree-Law 27/2011
The Process established by the Land Law
Evictions
Land rights in the Timorese formal land tenure system
Legal Mechanisms for Acquisition and Loss of Land Rights
Transfers of land rights
Adverse possession and legal protection of possessors
Expropriation
Conclusion
Chapter 7 – Land Institutions
Introduction
Looking at institutions
State institutions – The National Directorate of Land and Property and Cadastral Services (DNTPSC)
The origins and influences of DNTPSC
DNTPSC’s goals and tasks
Resources
Internal structure
Leadership
DNTPSC’s clients
External institutions
Ita Nia Rai (INR) and National Cadastre System (SNC)
International organizations and donors
Timorese civil society organizations
Conclusion
Chapter 8 – Social relationships, ideas, and practices around land tenure and the formal land tenure system
Introduction
Relevance of customary systems
Characteristics of land rights
Land tenure security
Legal tenure security
Perceived tenure security
Land titling
Land-related disputes and dispute-resolution mechanisms
‘Development’ and the right to expropriate land
Conclusion
Chapter 9 – The layers in movement – the formal land tenure system and the Suai Supply Base
Introduction
Oil, politics and ‘development’
The resource dispute in the Timor Sea
The Tasi Mane Project and the SSB
The Suai and the area of the SSB
Land tenure, land tenure systems and ‘development’
The informal approach of the Inter-Ministerial Team
The 10-percent agreement with the ‘community of Kamenasa’
The legislative approach
The contractual approach
The effects of land acquisition
Conclusion
Chapter 10 - Conclusions
Introduction
Studying land tenure systems – an analytical framework
What can we learn from Timor-Leste? Factors of success and failure of a formal land tenure system
Land tenure and administrative processes, public administrations, and state officials
Land tenure and the rule and role of law and lawmaking
Land tenure and ideology
The Timorese formal land tenure system – final remarks
Biography
Bernardo Almeida is a post-doctoral researcher and lecturer at the Van Vollenhoven Institute, who focuses on land, law, lawmaking and development.
