Subject: Land Claims in East Timor

Land Claims in East Timor

Louise Martinovic*

Fitzpatrick, Daniel (2002) Land Claims in East Timor. Australia: Southwood Press. Pages i-x, 1-246. Price A$40.00 (incl. GST), US$35.00. ISBN 0731536886.

East Timor's heritage of occupation and colonisation, together with the conflict of late 1999 has created competing claims for land in East Timor. Resolution of these competing claims is fundamental to the reconstruction of a sustainable social and economic structure for East Timor.

In eight chapters, this book comprehensively reviews the four categories of potentially competing land claims in East Timor - underlying traditional interests, titles issued in the Portuguese era, titles issued in the Indonesian era, and current occupation - and discusses possible options for resolving them.

From the opening sentence in chapter one, the reader is alerted to the complexity of challenges facing East Timor. In this chapter, the author provides a commendable summary of the basis for conflict and potential conflict of land claims in East Timor, which would be of particular value to those who are not familiar with East Timor's history of displacement and dispossession. Among the issues discussed, the author questions the extent to which the United Nations Transitional Authority in East Timor (UNTAET), which was established by the United Nations Security Council in the aftermath of the 1999 violence, should consider the issue of land claims. He concludes that resolving competing land claims is ultimately an issue for the people of East Timor, and at page 17 calls for all interested parties "to move beyond the emotive politics of land and forge a compromise based on a transparent and sustainable land claims framework."

In chapters two through to seven, the book sets about untangling the competing land claims, and in the final chapter, the author puts forward options which he considers will create a transparent and sustainable land claims framework for East Timor. The extensive coverage of the book is demonstrated by its inclusion of insightful comparisons to land claims experiences of other post-conflict and post-colonial states such as land restitution in Kosovo, Zimbabwe and South Africa.

According to the author, a knowledge and understanding of East Timor and its people, is essential to the success of land administration in East Timor. This knowledge and understanding is particularly important when considering claims based on underlying traditional interests. The author, in chapter seven, distinguishes traditional groups currently in occupation of their traditional lands (albeit with no formal title), from those groups who seek restoration of their traditional lands allegedly lost under Portuguese or Indonesian rule. He concludes however, that in both instances, recognising customary forms of tenure will inevitably require state regulation in four areas: conflict resolution, land administration, dealings with outsiders, and protections against discrimination and abuse of power.

The book explores possible future interaction between custom and the state, and considers the role that liurai and dato, the customary leaders of traditional East Timorese society, may play in the future system of land administration, and issues of gender discrimination arising from East Timor's predominantly patrilineal traditional society.

Chapters three and four consider the category of land claims based on Indonesian titles. In chapter three, Indonesia's 24-year period of rule from 1975 to 1999 is considered in light of the law of belligerent occupation, where the basic principle is that occupation does not lead to sovereignty, but only administrative control. The author concludes at page 74 that the law of belligerent occupation is applicable, as Indonesia did not gain sovereignty over East Timor through any valid act of self-determination. If one accepts the author's conclusion that the law of belligerent occupier applied in East Timor, then it logically follows that Portuguese law remained the underlying law of East Timor during the period of Indonesia's occupation. However, in chapter six the author questions the practicality of fully restoring all pre 1975 Portuguese titles, which he predicts would lead to large-scale eviction. As an alternative to restoring Portuguese titles, the author proposes that recognition should be subject to other bona fide competing claims, particularly those by current occupiers. Although a separate chapter is not devoted to a discussion of claims based on current occupation, the author's emphasis on minimising social conflict which could potentially overwhelm judicial and law-enforcement capacity, makes it apparent that he does not recommend adoption of any land law that could lead to large-scale eviction.

Of credit to the author is his treatment in chapter four of Indonesian land law and administration as it was applied in East Timor. He considers the possible fate of Indonesian property titles in East Timor: invalidation, or qualified recognition. Either way, the statistical information as to the type, number and area of Indonesian property titles issued in East Timor and Dili provided at pages 94 and 95 suggest that a substantial proportion of East Timor's population will be affected.

Throughout this book, the author illustrates the complexities raised by the four categories of potential land claimants with numerous current examples of land disputes, which are drawn from the author's three months' work in early 2000 with UNTAET. Documentation and discussion of these case studies is particularly effective in chapter five, where the author looks at the different categories of Indonesian dispossession.

In chapter eight, the author's argument for land laws that are simple and inexpensive enough to allow effective implementation is highly persuasive. The author does not assert that the policy options he proposes should be adopted as a ready-made solution to be imposed on the people of East Timor. However, one strength of this book is the author's ability to 'marry' the academic complexities of land claims in East Timor to the practical realities faced by the men and women of East Timor to provide workable policy options that deserve the serious consideration of the new East Timorese government.

The book is well referenced and its comprehensive and careful consideration of land claims in East Timor make it not only a fascinating read, but also a valuable resource for anyone researching in this field.

* B Sc (Hons) (University of Western Sydney), LLB (Hons) (The Australian National University).

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