Abstract
Land restitution carries implicit recognition of some previous claim to ownership, but when are first claims recognized? The concepts of first possession and original acquisition have long been used as entry points to Western concepts of property. For Austronesia, the concept of precedence is used in customary systems to justify and describe land claims and Indigenous authority. Conflict and political change in Timor-Leste have highlighted the co-existence of multiple understandings of land claims and their legitimacy. Considering customary principles of precedence brings into relief important elements of first possession important in land restitution processes. This paper juxtaposes the concept of original acquisition in property theory to two different examples of original claims from Timor-Leste: a two-part customary origin narrative from Oecusse and the development of a national land law for the new state. In these three narratives, we identify three different establishment events from which land authority develops. The article then uses this idea of the establishment event to explore five points of customary-statutory intersection evident from the land restitution process: (1) legitimate sources of land authority; (2) arbitrary establishment dates; (3) privileging of social order; (4) recognition of spiritual ties to land; and (5) the possibility for reversal.
Highlights
Authorities’ Legitimacy in Land RestitutionLand restitution can occur where parties acknowledge that a past allocation or occupation of land was not legitimate
In moments of significant sociopolitical change—resulting from conflict, regime change, economic transformation, or other factors—which authorities are recognized as legitimate adjudicators to determine land ownership at various scales? Where multiple legal systems have operated in succession, which will persist or receive official recognition? Where customary and statutory systems coexist, where and which will continue to be actively used with respect to land ownership, both de jure and de facto? How are landholding preferences, priorities, and practices of Indigenous rural communities selectively recognized within state processes?
Oecusse case indicates that such temporary status can endure for several generations and under different political regimes and realities. These claims have proven resilient and durable; when most of Oecusse’s population fled the district in the violence accompanying Indonesia’s 1999 departure from Timor-Leste, most returned within a year to their pre-evacuation homesteads and same status with regard to landowning. These narratives remind us that customary land claims are not static or fixed to which external disruptions occur as a novelty; rather, conflict, incorporation of outsiders, and population fluctuations can be integral to what people recognize as the origin stories that underlie today’s customary land claims
Summary
Land restitution can occur where parties acknowledge that a past allocation or occupation of land was not legitimate. We examine two disparate situations from Timor-Leste that illustrate who has authority to determine legitimate norms for land claims and ownership. The first (Section 6) is a two-part narrative on establishing Indigenous land authorities in a rural area, which highlights the Austronesian concept of precedence and ideas of legitimate first possession/establishment events in that context. The second (Section 7), concerns the fifteen-year process of drafting and approving a national land law for Timor-Leste. In this case, civil society offered sustained contestation over the legitimacy of customary and state authority to define land ownership in a context where there were substantively different understandings of “first possession”.
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