Comparing Israeli Farmers Land Rights against FAO's Tenure Guidelines

Transcription

1 Comparing i Farmers Land Rights against 's Tenure Guidelines Micha Drori 1

2 2 s Land Tenure Guidelines Land provides a platform for livelihoods and a basis for social, cultural and religious practices. Pressure on these resources is increasing as areas are sought for cultivation, and occupied by urban expansion and as people abandon areas because of degradation, climate change and conflicts. In response, and its partners initiated the preparation of an unprecedented international agreement on the governance of tenure that promotes secure tenure rights as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment.

3 3 The Unique i Land Regime The State of has a land regime which is unique amongst countries with developed economies: The vast majority (about 93%) of the country s land area is defined as " Lands" and is formally national property both rural & urban. The Lands Authority allocates the land to different users by means of long-term leases or shorter rent contracts.

4 4 A Process of Privatization? Despite the apparent dominance of national land, is today very much a country where the ethos of private property dominates both legally and politically. In the land that is leased out in urban areas, a "creeping privatization" has occurred over the years and the urban leases have gradually been expanded so as to grant de facto quasiownership. A land reform bill that was passed in 2009 will gradually turn these rights in the urban areas into de- jure private property.

5 5 Not for Farm Land and Informal Tenure But those who hold national land for agricultural purposes - including residential and industrial areas in the rural sector- have dramatically lesser rights than their urban counterparts. Farmers are largely kept out of the reform process. There is a longstanding social and legal dispute regarding the rights that should be given to the lessees of the rural sector. Informal holders, mainly Bedouins and historic squatters are also kept out of the process.

6 The Disparities in the i 6 Land Reform Rural rationalization: Urban rationalization "Distributive Justice" rationale "Eliminating Friction" Minimal rights or none at all result Transfer of Ownership For token or no compensation

7 7 The Voluntary Guidelines on Land Tenure

8 8 The Voluntary Guidelines on Land Tenure International soft law instrument Framework that states can use for developing national land policies and legislation Human rights based approach (right to adequate food and housing) Guidance for all stakeholders

9 9 General Matters Recognize and respect all legitimate tenure right holders and their rights. Safeguard legitimate tenure rights against threats and infringements. They should protect tenure right holders against the arbitrary loss of their tenure rights, including forced evictions. Truly recognizing mostly formal rights, mostly in urban sector. Discriminating arrangements or none at all and even forced eviction for those with informal rights and for agricultural land.

10 10 General Matters Promote and facilitate the enjoyment of legitimate tenure rights. Safeguard legitimate tenure rights against threats and infringements. Consultation and participation: engaging with and seeking the support of those who, having legitimate tenure rights, could be affected by decisions, prior to decisions being taken, and responding to their contributions; Forbid farmers forms of enjoyment or charge these forma with heavy taxation/payments. No consultation or representation by excuse of conflict of interest, though include the general public.

11 11 General Matters States should remove and prohibit all forms of discrimination related to tenure rights. the governance of tenure of land should take into account also all civil, political, economic, social and cultural rights. Generally a formal and technical process. Resistance, suspicion and envy towards different or privileged sectors.

12 12 General Matters States should provide access to timely, affordable and effective means of resolving disputes over tenure rights, including alternative means of resolving such disputes. Negotiation, mediation rather than formal legal proceedings sometimes taken as weak or corrupt. Harsh legislation limit spectrum of judicial discretion. Dispute described between tenant and public rather than state.

13 13 General Matters States should welcome and facilitate the participation of users of land, fisheries and forests in order to be fully involved in a participatory process of tenure governance. States should seek to develop national consensus on proposed reforms. Participation of affected population unwelcomed. Considered corrupt. Solution seeking handled as conflict and public crisis.

14 14 General Matters States should provide prompt, accessible and nondiscriminatory services to protect tenure rights, to promote and facilitate the enjoyment of those rights, and to resolve disputes. States should eliminate unnecessary legal and procedural requirements and strive to overcome barriers related to tenure rights. Complex, hostile, inefficient, undermanned land management body. Seen as obsolete and to be eliminated for urban sector.

15 15 Legal Recognition and Allocation of Tenure Rights and Duties Where States intend to recognize or allocate tenure rights, they should first identify all existing tenure rights and right holders, whether recorded or not. Indigenous peoples and other communities with customary tenure systems, smallholders and anyone else who could be affected should be included in the consultation process Resistance, suspicion and envy towards different or privileged sectors. Desire for a rigid, standard, privatized system. Reluctance to recognize historical rights.

16 16 Legal Recognition and Allocation of Tenure Rights and Duties States have the power to allocate tenure rights in various forms, from limited use to full ownership. Policies should recognize the range of tenure rights and right holders. Policies should specify the means of allocation of rights, such as allocation based on historical use or other means. Desire for a rigid, standard, privatized system. Interest to maintain control over bigger chunks of land. Interest to collect maximum income were possible.

17 17 Legal Recognition and Allocation of Tenure Rights and Duties States should allocate tenure rights and delegate tenure governance in transparent, participatory ways, using simple procedures that are clear, accessible and understandable to all, especially to indigenous peoples and other communities with customary tenure systems. Most farmers don t have a long term formal lease contract. Complex, hostile, inefficient, undermanned and sometimes corrupt land management body. Seen as obsolete and to be eliminated for urban sector.

18 18 Legal Recognition and Allocation of Tenure Rights and Duties Whenever States provide legal recognition to informal tenure, this should be done through participatory, gender-sensitive processes, having particular regard to tenants. In doing so, States should pay special attention to farmers and small-scale food producers. Farmers considered a strong and privileged sector that should be distanced from the process to avoid partisan influence. Bedouins and historical squatters described as violent people who do not respect the law.

19 19 Legal Recognition and Allocation of Tenure Rights and Duties States should take all appropriate measures to limit the informal tenure that results from overly complex legal and administrative requirements for land use change and development on land. Where it is not possible to provide legal recognition to informal tenure, States should prevent forced evictions Constantly changing complex, entangled and conflicting rules, that are subject to constant legal and public attacks. Forced evictions described as one of the main solutions to the housing crisis.

20 20 Transfers and Other Changes to Tenure Rights and Duties Transparent and efficient sale and lease markets. Safeguard and protect legitimate tenure rights. Encourage tenure right holders to make responsible investments in their land. Encourage voluntary land consolidation and adjustments to improve efficiency. Sub lease farm land is forbidden. No option for consolidation of farm land. Limited options for partnerships. No real sale market.

21 21 Administration of Tenure Consider providing restitution for the loss of legitimate tenure rights. No restitution in land. Only token monetary compensation. May consider land ceiling as a policy of just distribution. Expropriation should be transparent and participatory, for public needs only and subject to judicial review. Effective land ceiling for farm land 3 to 8 hectares per household. Forced termination of lease also for commercial and residential purposes. Promptly providing fair valuation and just compensation. Nominal compensation based only on loss of agricultural investment.

22 22 Administration of Tenure State should provide accurate, efficient and accessible recording systems of tenure rights. Provide fair and timely and transparent valuation of tenure rights for specific purposes, that take into account non-market values. Most farmers don t posses long term written contracts. Subject to changing policies. Rights are usually not formally registered. No registration at all for Bedouins and historical squatters. Nominal or subsidized payments for agricultural use. Any non-agricultural use, if permitted, subject to payment of full market value.

23 23 Administration of Tenure Taxes should be based on appropriate values aimed to achieve social, economical and environmental values. Regulated spatial planning should be developed through consultation and participation. Planning should reflect the priorities and interests of the affected communities. Nominal or subsidized payments for agricultural use. Any non-agricultural use, if permitted, is subject to payment of full market value. Bedouins and squatters don t pay any lease. Planning mostly enforced from above, based on national and urban interests.

24 24 Administration of Tenure Provide impartial and competent judicial and administrative bodies to timely, affordable and effective means of resolving disputes over tenure rights. Consider specialized tribunals. Disputes between lessor and lessees are decided by lessors authority, or taken to court. In the past shared committees. Specialized tribunals for some taxes.

25 25 Initial Conclusions There no real awareness in to s Guidelines. Land tenure rights of framers and informal tenants do not meet the Guidelines recommendations in many aspects.

26 26 Thank You for Your Attention!