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Annual World Bank Conference on Land and Poverty 2015
Timor-Leste:
Securing Communal Land Rights and Enabling Development Investment — Challenges
and Opportunities
Shivakumar Srinivas
Keith Clifford Bell
The World Bank
kbell@worldbank.org
Paper prepared for presentation at the
“ANNUAL WORLD BANK CONFERENCE ON LAND AND POVERTY”
The World Bank - Washington DC, March 23-27, 2015.
Copyright 2015 by author(s). All rights reserved. Readers may make verbatim copies of this document for
non-commercial purposes by any means, provided that this copyright notice appears on all such copies.
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Abstract
This paper discusses the land tenure challenges of Timor-Leste, a fragile nation that is emerging
from decades of political conflict, violence, and internal displacement. Past Portuguese and
Indonesian administrations have inflicted gross inequities in land rights and resource access in
the country. This paper details the challenges and opportunities related to customary practices in
administering rural land in Timor-Leste, which accounts for about 90 percent of the country’s
landmass. It highlights urgent priorities for resolving existing uncertainties in communal lands
through new laws, regulations, and policies to reduce conflict, diminish the risk of further
instability, and provide a way forward to resolve disputes. The paper illustrates the need for
effective land governance and a fair and transparent benefit-sharing arrangement and the role of
national political will in ensuring that legislation within and across sectors is coherent on
sustainable administration and use of land and natural resources. In conclusion, it notes that
despite Timor-Leste’s challenging political history and institutional weakness, opportunities are
now emerging to protect and recognize communal land rights and customary practices while
promoting sustainable economic development through schemes like Community Protection Zones.
It cautions though that the hard work is just beginning.
Keywords: tenure security, State land, communal land, customary practices, Community
Protection Zone
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1. Background
Timor-Leste has around 15,000 square kilometers of land with a population of a little more than a
million of which only 500 square kilometers is in the urban and peri-urban areas. About 37.4
percent of its population lives below the international poverty line, which means living on less
than US$1.25 per day — and about 50 percent is illiterate (UNDP, 2012). More than 90 percent
of the land is reportedly in the rural areas and is claimed, through first possession, by specific
communities or groups (Nixon, 2005; Fitzpatrick, 2002 and 2010). Land access is divided among
community members. New in-migrants who have settled in the community are also eligible for
allocation of land for subsistence. Such community-led land allocation has created a complex
network of claims among households with individual rights to use and transfer land hereditarily.
Only urban and peri-urban lands are covered by “privately held rights.” Communal lands are
administered by communities, through customary leaders, in accordance with customary practices
and traditions. First, the Portuguese and later the Indonesian administrations enforced different
formal tenure systems, which largely ignored customary rights and undermined them through
State-led land appropriation. Furthermore, Timor-Leste’s history is characterized by several
episodes of displacement, forced relocations, military occupation, and deadly internal upheavals
primarily during the Indonesia occupation. This resulted in numerous land disputes and unclear
land-tenure rights (Nixon, 2005; Bugalski, N., 2010; Fitzpatrick, 2002; and Dale, 2010).
More than 400 of Timor-Leste’s 442 villages are considered under-developed and close to 30
percent of its population are urbanized (Highlights of the 2010 Census Main Results in Timor-
Leste, Ministry of Finance). Both the Portuguese and Indonesian administrations claimed large
areas as “State land,” ignoring community land rights and customary practices. Poor land and
resource governance, conflicting legislation, and the lack of political will to adequately address
socio-economic inequities and bias are major barriers in addressing the rights of rural communities
and sustainable livelihoods.
2. Land Administration During the Colonial Era and Persisting Issues
The Portuguese administration established a rudimentary land administration system and issued
less than 3,000 land titles. However, it issued a large number of ownership rights (propriedade
perfeita), perpetual land use right (aforamento) - unless established differently in the title - that
often stipulated how the land parcel would be used. However, there was an obligation that the
holder pays an annual fee and use the land for the specified purpose. This right can be converted
to a ownership right after a stipulated period and upon payment of prescribed fee. These titles, as
available information and evidence indicate, were only issued to elite groups. Many communities
donated land to the Church; however, such donations were informal while some may have secured
titles over a period of time.
The Catholic Church grew in Timor during the Portuguese occupation and had less influence.
However, during the Indonesian occupation they became much more influential and received land-
donations from the communities and secured access to land for which no verifiable documentation
or other evidence exists. In general, such landholder had better access to fertile agricultural land,
other productive areas, and urban areas, furthering the economic hold of the groups, as most of
these lands were in Dili and Bacau districts.
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Titles issued by the Portuguese administration are now being intensely debated with claims for
restitution of acquired land. However, civil society argues that since the Portuguese administration
did not issue or recognize community land rights (thereby ignoring the rights and claims of the
greater proportion of the population), restitution of title claims now would be an injustice to poorer
and local communities holding Portuguese titles. Civil society has reasoned that this is possibly
one of the reasons the current draft Land Law package (2009) proposed by the government has not
made progress in its adoption and implementation (La’o Hamutuk Bulletins, refer to its website).
Under the Indonesian occupation (1975-1999), greater control over land was exercised by forcibly
resettling the Timorese population along major coastal roads and away from interior areas. As a
result, the Timorese were compelled to change their way of life. Rather than maintain separate
patches of land for living, farming, and as pastures, as in most customary areas, all such interests
were confined to small land plots. Transmigration programs that resettled small groups from other
Indonesian provinces also complicated the understanding of land use and ownership.
While arbitrary dispossession was common throughout Indonesia, the militarization and intense
violence and intimidation in Timor-Leste made it easier for the government to perpetuate the
practice of moving people out of their land. This land was then claimed by the administration as
“freeland.” For example, the Commission for Reception, Truth, and Reconciliation (Comissão de
Acolhimento, Verdade e Reconciliação de Timor-Leste or CAVR), 2005, reports, “Indonesian
records from the districts of Bobonaro, Covalima, Oecusse, Baucau, Manatuto, Aileu and Liquiça
show a total of 189,660 hectares, or 55 percent of the total land area of these seven districts, as
‘free state land.’ A further 50,440 hectares, 14.6 percent of the total land area, were classified as
‘occupied state land’. This left just 7.4 percent of land in the seven districts that was classified as
‘customary land.’ Thus, numerous communities and households were displaced from their land by
the state or the army, to make way for public administration offices, civil servants housing, private
investments or military infrastructures, with little or no compensation. There was a heavy
presumption of government ownership of land as against community, with military force and
coercion used to claim land areas for ‘public purposes.’ Commentators argue that a similar
extractive regime, under the disguise of ‘public purposes’ were utilized and experienced across
Indonesia where indigenous peoples and local communities were forced out of and off their land
by the government in favor of politically connected investors” (CAVR, 2005, Dale, 2010,
Carmona, 2012, and Vieira, 2012).
Available reports show that the Indonesian administration’s management of land and resources
involved extensive land-use changes that invariably resulted in displacement; loss of access to and
control of local natural resources for dependent communities, especially indigenous peoples; and
destruction and loss of the rich biodiversity of primary and naturally regenerating forests. The
Indonesian administration also established its land-tenure system in the country and issued titles
mostly in urban areas. Available reports indicate that the Indonesian administration may have
issued between 34,966 and 47,000 land titles (La’o Hamutuk, 2013). The system employed was
opaque and involved little oversight. Allegations of corruption, the use of violence and abuse of
power, and unlawful procedures undermined the legitimacy of these Indonesian land titles.
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The poor recognition of customary and community rights continued during the Indonesian
administration. Authority over land areas consolidated the Indonesian government’s political
power. Indonesia appropriated land to facilitate national economic development for “public
purposes.” It moved Timorese communities away from their lands and shifted new migrants from
Indonesia into Timor-Leste, undoing local community cohesion and tenurial arrangements.
Attempts were made to dismantle customary land claims, subordinate people’s interests in land
and resources to the State, and strengthen the political elite’s access to land and natural resources
in occupied Timor. This triggered new conflicts between the State and the public over access to
and use of resources and State-led resource extraction. Both Portuguese and Indonesian regimes
used the powerful bureaucracy, police and armed forces, and uncertain laws and administrative
procedures to take over land with little or no compensation (International Crisis Group, 2009 and
2013).
Post-1999 referendum: Following the overwhelming vote for independence, pro-Indonesia militia,
in collaboration with Indonesian military forces, unleashed a wave of violence and destruction that
displaced nearly half the population. An estimated 250,000 people were driven over the border
into Indonesian West Timor, and some 300,000 fled their homes in urban areas, particularly Dili.
More than 70 percent of public buildings are estimated to have been destroyed. While some peace
and order was achieved after a few months, the confusion ushered in during the period led to
general illegal occupation of properties and many Timorese moved into properties abandoned by
the Indonesian State and by those who had fled the country by then (International Crisis Group,
2009 and Carmona 2012).
Anecdotal evidence shows that when people returned to their homelands, they were often
confronted with angry competing landholders (occupants)/claimants, residual animosity and
hostility, and competing land claims. Continued land conflicts threatened to rekindle past
hostilities. The situation was only partly managed by social and community mechanisms and
traditional leaders. From 2000 to 2005, significant instances of land-related quarrels, faulty dispute
resolution, and conflicting traditional legal systems led to frustrations and the 2006 crisis was
partly attributed to these factors (Brady, C., and Timberman, D. G., 2006).
Some critics claim that the UN’s transitional government (1999-2002) adopted a soft approach to
resolving pressing land issues that have only multiplied in the wake of the referendum and
displacements (La’o Hamutuk, 2009 and Fitzpatrick, 2002). A proposal to create a land
commission and land-titling program at least in the urban centers was abandoned citing lack of
politically feasibility. Further, Indonesian-era land records were carted to Jakarta by Indonesian
officials who left the country when the nation secured independence. Numerous UN-brokered
dialogues between the two nations attempted to retrieve the documents but have not yet yielded
results. To date, it is not clear whether Indonesian era cadastral maps and records remain in Jakarta
or have been returned to the Timor-Leste government.
After Timor-Leste attained independence in 2002, a few attempts were made to revise colonial
tenure arrangements and build a sustainable land-administration system. However, continued
political uncertainties prevented comprehensive and decisive government action. Land disputes
were identified as a main reason for the political and social crisis of 2006. With the return of
political stability and peace since 2007 and generational growth, urbanization, and in-migration, a
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market-based economy began developing in rural areas with increased demand for land. This
demand came from local farmers (for instance, in the coffee areas) and State and international
companies’ agricultural projects. And that while agricultural projects may not require land, some
of the infrastructure projects planned by the governments will need land currently held under
customary claims. This fueled concerns on the security of communal lands held under customary
tenurial arrangements. It also led to a demand for protecting and recognizing customary practices.
Initiatives to reform communal land policies and legal environment must acknowledge existing
diversities and build on it by establishing mechanisms and guidelines to protect and recognize
customary rights to land and resources (Fitzpatrick, 2002 and 2010; International Crisis Group,
2009 and 2013; Nixon, 2009; and Carmona 2012).
3 Political Upheavals, Displacements, and Tenure Insecurity
The people of Timor-Leste experienced repeated violent conflicts and large-scale involuntary
displacement, between 1975 and 1999 under the Indonesian administration. Thereafter,
displacements occurred in 1999, after the referendum and prior to the UN administration, and later
in 2006 when the territory was under independent national government. Anecdotal evidence
suggests that most Timorese individuals alive today have experienced displacement at least once
while many have experienced several episodes. Numerous displacements have had two key effects:
it has placed different communities with sometimes conflicting understanding of local history and
land use alongside each other, especially where once temporary displacements have become semi-
permanent and it has rendered a large number of people formally landless.
Field studies have confirmed, however, that after displacement during Indonesian occupation,
customary land systems reconstituted themselves, demonstrating an inherent resilience. Since the
end of Indonesian occupation in 1999, Timorese affected by displacement and war have sought to
reclaim their rights to land, either in their new locations or through acts of return or relocation.
No land registration can take place until there is a land law that clarifies the validity of old
Portuguese land rights, Indonesian land rights, customary tenures, and just compensation
arrangements for those who hold verifiable entitlements or long possession in favor of the
restitution of statutory rights. Many disputes could arise when the proposed new land law is passed
and implemented, and unless there is an adequate compensation system for those who lose
occupations, more social strife is bound to follow (International Crisis Group, 2009 and 2013;
Nixon, 2009; and Carmona 2012).
4. Key Challenges to Protecting Customary Rights and Reforming Communal Land
Administration
The government’s Strategic Development Plan 2011-30 calls for accelerated public investments
to promote economic development focusing on better use of land and natural resources. This plan
would need immediate land-use changes. The main issues for Timor-Leste’s government to
consider include: criteria for participation; accountability of decision-making processes and
financial management; uncertain laws and regulations; lack of mechanisms for dispute resolution;
and distribution of liabilities with lesser burden on poorer groups.
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Lessons learnt from other countries suggest that land-investment programs could be used to build
momentum for political stability, peace, and tenure reforms, protect and recognize customary
practices and communal land rights, and establish a predictable benefit-sharing system that would
be advantageous to all. However, colonial principles and views must be discarded if equitable
land-tenure security is to be achieved. Reforms to communal land should address existing
institutional weaknesses and legal gaps that constrain the sustainable and inclusive development
of communal lands and the protection of the rights and interests of local communities affected by
private sector investments and infrastructure projects.
The government has recognized that providing State and legal recognition of land already in use
and occupied by rural communities is essential to address their long-term needs and interests. A
program to reform communal land will require broad-based participation and a locally driven
agenda. Such programs must build on existing local capacities, ensure ongoing learning and
adaptation, and integrate activities at different levels to address complex problems.
The legal regulation of communal land is important to achieve national priorities and goals
established in the government’s Strategic Development Plan (2011-30) relating to food security
and rural development. It is also a matter of recognition and respect for a right that is an intrinsic
part of the identity of those communities. This should help create a reliable national cadastre that
is publicly accessible and searchable. Developing a good policy framework should precede new
legislation. This, in turn, requires the engagement of all sectors and stakeholders within the
government and society, especially in Timor-Leste where land has played a key role in conflicts.
5. Land Governance and the Legal Framework
As with other post-colonial newly independent states, Timor-Leste’s legal framework has been
influenced by a succession of different systems (i.e., Portuguese, Indonesian and United Nations).
These influences combined with the demands of a post-conflict environment and State-building
challenges have resulted in the current lack of clarity in land-tenure legislation. The Timorese legal
system is now based on civil law but needs to be contextualized within its historical background;
frequent displacement of population; and the political, social, and economic context.
After the 1999 referendum and despite the illegality of the Indonesian occupation, the UNTAET
opted to retain Indonesian laws that had been applied in the absence of other effective legislation
and because it had been enforced in the territory for nearly 25 years. Some restrictions were
imposed by Section 7 of UNTAET Regulations No. 1999/1, until new national legislation could
be developed and approved. The same option was followed by national authorities after the end of
the UNTAET administration’s mandate and the passing of key national legislation including the
Constitution and relevant laws (2/2002 and 10/2003). By default, Indonesian legislation is
applicable where no national legislation exists. However, and in spite of this rule, Indonesian
legislation is rarely applied in practice, as the public and authorities are poorly informed or
procedural differences make it impossible to apply. This lack of clarity prevented reforms to the
country’s land-administration system, continuing ambiguous earlier arrangements.
The 2002 Constitution of Timor-Leste regulates the basis of land tenure in Timor-Leste and
explicitly establishes that everyone has a right to private property (Section 54). This right also
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includes the power to transfer such rights (Section 54.1) according to the law. The Constitution
also establishes the right to adequate housing (Section 58). However, the right to private property
has some constitutional restrictions: it cannot be used to the detriment of social purpose (Section
54.2). Although some doubts exist over this Section’s interpretation, its function seems to be to
clarify that property rights are not unlimited and can be restricted for “common good” (e.g.,
construction of infrastructure should be preceded by the issuance of an environmental license to
prevent damage that will affect the entire community). According to the Constitution, only national
citizens have the right to own land in Timor-Leste (Section 54.4). This provision raises some
questions regarding its interpretation that have not yet been resolved. For instance, can legal
entities (companies) own land in Timor-Leste? If yes, which kinds of legal entities are eligible?
This has not been clarified.
Apart from the Constitution, Law 1/2003 on the Juridical Regime of Real Estate has been one of
the few laws on land tenure that was approved by the National Parliament until the passing of the
Civil Code in 2011. This law was part of a package that was only partially approved in 2003. Two
main features of Law 1/2003 are the definition of “State land” and the creation of a land-claims
process. This law established that all land that belonged to the Portuguese administration is now
considered State land. The law also determined that all the immovable property acquired or built
during the Indonesian occupation also belongs to the Timorese State.
The USAID-supported land program made an effort to create a legal regime that would govern
land and property ownership but did not make much progress due to policy and legal vacuum. A
critical lesson learned from these initiatives was that unless the government develops and commits
to enforcing a sound and fair policy on communal lands, challenges would continue. Another
lesson learnt relates to small landholdings and resolution of land conflicts. Although the transition
government did take measures to protect the interests of communities and small landholders
against the competing interests of large landholders, it was not entirely successful. Thus, issues
accumulated over time.
With regard to land and property issues in the urban areas, one could draw valuable lessons from
the experiences of the USAID project and other research studies (USAID, 2011 and Rede ba Rai,
2012). These have highlighted that problems between community members most often cited land
issues as the source, indicating that land and property issues remain contentious, and may
contribute to further conflict. Experiences and case stories documented by Rede ba Rai (2012) also
show that any new land policy or legislation should include support for developing local dispute-
resolution mechanisms to address land conflict and manage urban land. These mechanisms should
be legally enforceable and realistic. Importantly, momentum for change in land administration and
management is only the beginning: how change occurs and protects the land rights of Timorese
people are questions that will remain for years to come. That said, clarifying land rights will not
guarantee political stability, but will play an important role in promoting peace and preventing
future conflict. In any case, no land registration can take place until a Land Law is in place.
Lease contracts frequently represent an important form of accessing land-use in Timor-Leste. The
lease of State and abandoned land was regulated by the Decree-Law 19/2004 “Juridical Regime of
Property: Official Allocation and Leasing of Private Property of the State.” This decree-law is still
in place and regularly used; Directorate of Land, Property and Cadastre Services under the
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Ministry of Justice by 2014 had more than 2,000 contracts recorded in its database. Despite the
regular use of Decree-Law 19/2004, some of its regulatory aspects have never been approved (e.g.,
regulation of rent prices) and concerns exist about the potential duration of “State land” leases
issuable under 19/2004. The lease of land between private entities will now be regulated by the
proposed Civil Code (which revoked Law 12/2005). Nevertheless, community land rights based
on customary land-tenure systems have received little recognition in Timorese legislation. Law
10/2011, which approved the Civil Code, has the only reference to community land rights (Art. 4,
Communal Property), establishing that land that is for the use of one community is that
community’s property, according to their usage and customs.
Although a broad range of legislation has been promulgated since 1999 and thereafter, progressive
strengthening of legal and judicial frameworks is necessary to promote economic development
and effective governance in Timor-Leste, particularly the law on land ownership, which is
currently before the parliament again. In all these discussions, it is important to note that customary
rights are recognized in the Constitution as long as they do not contradict the Constitution and the
legislation that regulates them.
6. Recent Efforts to Reform the Legal Framework on Land
A package of three laws on land and property were prepared in late 2009, going through at least
five rounds of drafting and submitted to the National Parliament for consideration and discussion.
These laws were the (refer to La’o Hamutuk, 2013):
1. Special Regime for Definition of Ownership of Immovable Property (the Land law)
2. Expropriation Law, and
3. Real Estate Financial Fund.
Following various rounds of consultation, these versions of the laws were approved in 2012 by the
National Parliament, but were “vetoed”/sent back by the then President. He refused to sign the
laws “due to disagreements with the political options taken to address the complex land tenure
situation” (refer to La’o Hamutuk website). In 2013, after the land law package was quashed, the
Ministry of Justice reworked it, initiated another round of consultation, and submitted the revised
version to the Council of Ministers. The drafts were approved by the Council in June and July
2013 and have since been awaiting debate by the National Parliament.
The current draft of the Land Law (2013 version) highlights the need to: (a) recognize the reality
of almost universal customary land management in rural areas and provide ways to work with it;
(b) bring some order to overlapping and contested land and property claims, especially in urban
and peri-urban areas; and (c) provide land access and use regimes that will promote investment as
the engine for national economic development. Chapter IV of the current draft deals with the
communal dimension of customary land areas. However, it needs further elaboration for
implementation. Two critical dimensions must be addressed: treatment of (a) individual and/or
sub-community (households, extended families, etc.) rights acquired through customary systems
and (b) collective community rights and what these mean in practice. The draft law proposes a
new legislation for addressing issues raised by communal land areas. However, some debate and
clarity is needed to establish a sustainable system. The government has acknowledged that existing
uncertainties over communal land rights must be resolved through laws, regulations, and policies
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aimed at reducing conflict, diminishing the risk of further instability, and resolving disputes. Care
must be taken to ensure that reorganization of policies and procedures for land access and tenure
arrangements do not lead to legal pluralism and duplicity in land administration and management.
In his interaction with the Parliament and media during a ceremony to mark the return to work of
the third legislature of the National Parliament in September 2014, the current president urged the
Parliament to pursue review, discussion, and passage of the Land Law. The government is also
drafting a Spatial Planning Law as a priority. This proposed law on land-use planning is considered
important for generating investments and economic development. Once it is adopted, the
government is likely to consider the draft Land Law package and a number of other critical pieces
of legislation including the Anti-Corruption Law. The general view is that the government should
adopt the Land Law first as an umbrella legal instrument so that subordinate and sectoral laws can
be drafted to be consistent with the Land Law.
A number of complex factors must be taken into consideration when trying to manage urban and
spatial development successfully. These include the inherent characteristics of a city (natural and
historic conditions, e.g., Dili being a port city); governance structures; institutional settings; public
sector initiatives; planning regulations; investments in infrastructure and transport networks; tax
policies; and financial incentives for land development and community involvement. Transit and
transport networks shape urban development by enhancing accessibility and impact of land use,
land prices, and residential and central business densities. Experience shows that it normally takes
decades to achieve balance in land-use planning. In Timor-Leste, land use is generally
accomplished through government policies, strategies, and programs. These include general land
policies, spatial planning, and issuance of location permits to industries and service sectors. Such
an approach is a continuation of the Portuguese and Indonesian model of “public purposes first.”
It continues to pay less attention to community and customary land rights.
The government’s Strategic Development Plan (2011-30) also notes the need to reform land laws,
including laws governing land under customary practices, to encourage investments. Accordingly,
and under the draft Land Law currently being discussed among policy makers, Timor-Leste’s
government has proposed the creation of Community Protection Zones (CPZs) in 2009-10 to
promote investment in communal land. To understand this concept, it is critical to grasp the
nuances of “community land” in the Timorese context. It refers to land recognized as a
community’s property. This protects the tenure security of communities, but also recognizes a right
that it is intrinsic to the culture of those communities. CPZ refers to the delimitated area that could
comprise community land, private land, and State land, but due to its importance to a specific
community, its use by anyone other than the community can be restricted (e.g., limitations on
large-scale commercial activities that landowners can undertake without consultation with the
community). It is comparable to a protected area, but the limitations imposed on landowners are
not to protect the environment (per se), but a specific community. These two terms lay the
foundation for the proposed Land Law (2013-14).
CPZs can determine how land and land-based resources are shared, the benefits derived from their
use and management, and the manner and timing of benefit distribution. Fundamental to CPZs is
government compliance with the principles of Free, Prior, and Informed Consent (FPIC) that
permit land investments only after securing community consent. Commentators assert that
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thoughtfully planned and diligently implemented CPZs could facilitate sustainable management
and utilization of community-held land while creating practical livelihood options for those most
affected by planned investments.
Complex policies and regulations and political inaction make resolving issues of communal land
rights and land access very challenging. Proposed solutions like the creation of CPZs, though
important, have met with skepticism; the Parliament and the government have done little to review
and approve legal pieces on time. The potential of formal institutions to continue to undermine
customary entities and communal land tenure is significant. Despite such challenges, the need to
protect customary practices, strengthen communal land tenure, and recognize community rights is
gradually drawing attention. Only a long-term engagement, building trust and confidence, with all
stakeholders will help revive customary institutions in a modern context. The first step in any such
effort should be to recognize and support customary practices and local institutions in a formal
sense.
7. Building Opportunities: Creating an Enabling Environment for Communal Lands
In recent years, responses to land disputes, protection and recognition of communal land claims
and rights, and customary practices of local communities, and land governance have seen some
progress, even if enforcement remains inconsistent. The Law 10/2011 that approves the Civil Code
recognizes community land. However, it is a short and unclear provision, and without further
regulation is difficult to apply. Substantial resources and sustained commitment must be employed
and the right to land and tenure security integrated into national and local policies and regulations.
The government has requested donor assistance to prepare coherent and transparent policies,
operational guidelines, and procedures to help improve its delivery of land-administration services
for communal lands. These services include: (a) protecting and recognizing communal land and
property and safeguarding the interests of rural communities in developmental economic activity;
(b) addressing overlapping and contested land and property claims, especially in urban and peri-
urban areas; (c) developing precise guidelines for managing communal lands; (d) setting up
regulations and administrative capacity for CPZs; and (e) identifying communities and registering
and titling community lands. This work is expected to commence from 2015 along with a policy
dialogue on communal lands and an assessment of land governance.
8. Striking the Right Balance
Timor-Leste’s diverse cultural practices and traditions should continue to guide the government in
promoting communities’ access and right to communal lands and related natural resources. Efforts
to modernize the land-administration system should consider embracing aspects of these practices
while ensuring social inclusion and sustainability as enshrined in the Constitution. Before
developing policies, investment plans or programs, the government should consult communities
and understand their current practices, needs, and interests with regard to land and its management.
Political will, unambiguous and open communication, participation, careful planning, trust, and
diligent implementation are necessary to ensure effective and equitable use of communal land.
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Existing land rights should be the critical starting point of development programs or investment
proposals to decide who must be engaged and at what stage. The ongoing dialogue on
strengthening land governance between government and civil society offers opportunities for
reforms and they should be nurtured and supported.
Notes:
1. It may also be right to say that it was beyond the mandate of the United Nations Transitional
Administration for East Timor (UNTAET) to impose a system on the terrority to decide on competing land
claims, as UNTAET. In fact, its mandate was only to “administer” Indonesian and abandoned properties,
and issue temporary used leases (Section 7, Guidelines for the Administration of Public and Abandoned
Property by District Administrations). The UNTAET Land and Property unit drafted a set of regulations
and directives directed at the constitution of Land Commission, the registration of land right ownership,
alternative dispute resolution mechanisms for land disputes and a Special Panel of the Dili District Court
to handle land disputes which could not be resolved by mediation. However, when this package of draft
legislation was submitted to the Second Transitional Cabinet, it was rejected and the Cabinet Decision also
“noted that the issue of the jurisdiction of the District Courts to settle land disputes would need to be
revisited, preferably once a decision has been made on the location of the Land and Property Unit within
the institutional framework of East Timor Transitional Administration (ETTA).
2. As the UNTAET did not have the consensus support of the established (UNTAET/REG/1999/2)
“representative” National Consultative Council (http://www.jornal.gov.tl/lawsTL/UNTAET-
Law/Regulations%20English/Reg 1999 -02.pdf) on such an approach.
3. Personal communication with Warren Wright (October 3, 2013), who served as the Advisor to the
UNTAET (1999-2002) and facilitated negotiations between the interim administration representing Timor-
Leste and Indonesian counterparts. Recounting the background to the issue, he noted that the Indonesians
titled close to 40,000 land parcels under various tenure regimes as per the Basic Agrarian Law of 1960 and
simultaneously converted (or extinguished) most of the 2,000 titles granted during the Portuguese
administration. However, the offices of the then provincial office of Indonesia’s Badan Pertanahan Nasional
(National Land Agency) in Dili were ransacked during the 1999 breakaway with many records destroyed
or spirited away by Indonesian officials back to Indonesia.
4. In the Timorese legal system, legislative power is shared between the National Parliament and the
government. The Parliament is responsible for the approval of laws and the government approves decree-
laws. Both legislative acts have the same legal value, but the Constitution limits the legislative power of
the government on some topics (e.g., the government cannot approve decree-laws about political parties
and needs the authorization of the Parliament to approve decree-laws regarding expropriation). The
government can also send proposals of laws to be debated by the Parliament.
5. The following are some elements that should be considered in drafting the land law and other
regulations with regard to FPIC for Indigenous People (IP): (a) FPIC recognizes IPs’ inherent and prior
rights to their lands, territories, and resources and respects their legitimate authority and requires processes
that allow and support meaningful choices by IPs about their development path; (b) FPIC is central to IPs’
exercise of their right to self-determination with respect to developments affecting them; (c) interpretation
of FPIC should be embedded in international human rights instruments, conventions, and in UNDD on the
rights of IPs, which provides a comprehensive set of IPs’ rights.; (d) FPIC should be implemented based
on a human rights approach; (e) IPs’ participation is key to the design, implementation, and evaluation of
12
any activity in providing FPIC; and (f) FPIC is an evolving tool and its further development is ongoing; it
could be adapted to different realities and ecosystems. Department of Economic and Social Affairs,
Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues,
Workshop on Free, Prior and Informed Consent, (New York, January 17-19, 2005): “An Overview of the
Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law
and Practices.”
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Acknowledgements
The authors would like to thank the contributions of Romao Guterres (Director, Directorate of the
Land, Property and Cadastre Services of the Ministry of Justice) and his colleagues Rodrigo
Mendonca, Gastao Freitas, and Daniel Freitas, and Bernardo Almeida (Advisor to the Ministry of
Justice, Government of Timor-Leste on land between 2010 and December 2014). The guidance
and contributions of Declan O’Leary (Land Policy and Social Development Consultant) are
gratefully acknowledged.
BIOGRAPHICAL NOTES
Shivakumar M. Srinivas is a consultant for the World Bank and the United Nations Food and Agricultural
Organization (FAO) working in the East Asia Region, currently based in Jakarta, Indonesia.
Keith Clifford Bell, licensed surveyor and professional engineer, with more than 25 years in the
Australian public and private sectors, has since 2003, been the World Bank’s primary land policy
specialist for the East Asia Pacific Region.
