A Sociolegal Analysis of Formal Land Tenure Systems Learning from the Political, Legal and Institutional Struggles of Timor-Leste Law, Development and Globalization Series

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

Bernardo Almeida is a post-doctoral researcher and lecturer at the Van Vollenhoven Institute, who focuses on land, law, lawmaking and development.