Genealogy of Colonial Land Registration and State Land in Portuguese Timor

ABSTRACT

Establishing territorial control was one of the primary activities of colonial presence on Timor from the late nineteenth century. In Portuguese Timor as elsewhere in Southeast Asia, the colonial state pursued codification and regulation of land in multiple forms, including serial attempts to enact land registration in tandem with colonial projects including pacification, resource extraction, and generation of state income. Seeking to extend official purview to Timor-specific customary land use and practices, Portugal defined distinct social categorizations linked to land access and ownership. This article traces the policies governing land in Portuguese Timor from the late 1800s to the mid-1900s, highlighting state land acquisition, registration processes, laws and procedures asserting state control over land transactions, and international influences on Portuguese practices.

KEYWORDS:

• Portuguese colonial land policy
• state land claims
• Timor
• land formalization
• customary land

Acknowledgments

Initial archival work for this paper was conducted as part of a Yale University Dissertation Fellowship (2000–2005). Subsequent research was made possible through a Research Excellence Grant (2015–17) from the John Stott Endowment in Human Needs and Global Resources, Wheaton College, Illinois, USA.

Notes

1. Almeida, Land Tenure Legislation.

2. “Formal” here refers to the whole range of state-mediated land administration activities, including making laws, granting concessions, cadastral surveying, issuing certificates, and implementing state oversight of activities carried out by non-state actors, e.g. customary authorities conducting land dispute resolution.

3. Peluso and Vandergeest, “Genealogies of the Political Forest,” 762.

4. Ibid., 765.

5. Ibid., 773, 768, 774, 773, 774.

6. Fox, “Tracing the Path,” 11.

7. Farram, “The Two Timors”; Gonçalves, “Adatrecht van Portugeesch Timor,” 443; Castro, As Possessões Portuguezas na Oceania.

8. Vischer, Precedence.

9. Castro, As Possessões Portuguezas na Oceania, 436.

10. Gonçalves, “Adatrecht van Portugeesch Timor”; Provincia de Timor.

11. Castro, As Possessões Portuguezas na Oceania, 426–31.

12. “Questionario,” 162.

13. Ibid., 163.

14. Bethencourt and Pearce, Racism and Ethnic Relations; Havik, Keese, and Santos, Administration and Taxation, 1900–1945; Havik and Newitt, Creole Societies; Mata, “Interracial Marriage”; Matos, As Côres do Império. Multiple authors in Bethencourt and Pearce’s Racism and Ethnic Relations discuss ambiguities in this ill-fitting terminology, and how they became bound up with the emerging myth of lusotropicalism (Portuguese exceptionalism in achieving harmonious relationships among racial groupings). Indigenato later became based on racial categories and by the 1930s was enshrined in the Portuguese constitution under Salazar. This put in place an enduring multi-tiered legal classification that was to endure through 1961. Importantly, this means that most Portuguese-era land titles in Timor were granted under circumstances in which Timorese had unequal legal standing with regards to land ownership.

15. Andaya and Andaya, “Interracial Marriages and the Overseas Family.”

16. Hägerdal, Lords of the Land.

17. “Inquérito e outros documentos”; Silva, Relatorio das Operações de Guerra; Cardoso, “Serviços Agrícolas”; Martinho, Problemas Administrativos; Shepherd and McWilliam, “Cultivating Plantations and Subjects.”

18. Martinho, Problemas Administrativos, 135–49, 123–27.

19. The mountainous western districts of Ermera and Liquiça had (and have) the greatest concentration of coffee plantations, rural land certificates, and highly publicized multi-party disputes around titled land.

20. Cohn, Colonialism and Its Forms of Knowledge.

21. Burns, The Leiden Legacy; Furnivall, Colonial Policy and Practice; Tarling, Cambridge History of Southeast Asia; Heesterman, “State and Adat.”

22. Holleman, Van Vollenhoven on Indonesian Adat Law; Strathern, “Introduction: Rationales of Ownership”; Ter Haar, Adat Law in Indonesia.

23. Riles, Rethinking the Masters of Comparative Law.

24. Harwell, “The Un-Natural History of Culture,” 11.

25. Hooker, Adat Law in Modern Indonesia; Mamdani, Citizen and Subject; Young, The African Colonial State,

26. Silva, Relatorio das Operações de Guerra, 3–36, 41–42.

27. Ibid., 42–43.The similarities of Silva’s comments here and more recent directives are striking. Nearly identical statements and trajectories—acknowledging local specificity of customary practice, desirous of local suitability, and the belief that land registration will offer more secure rights—would recur a century later in land registration debates in newly independent Timor-Leste.

28. Ibid., 43. Presumably, greater local legislative authority would also have allowed Silva to pursue his personal agendas in plantation development. See Fitzpatrick, Land Claims in East Timo, 146, for more on the Silva family connections to coffee purchasing and export interests in Portuguese Timor.

29. Pinto Correia, Gentio de Timô, 349; Artur, “Política, Administração e Trabalho.”

30. Scott, Seeing Like a State.

31. Castro, As Possessões Portuguezas na Oceania, 18.

32. Moura, “Adatrecht van Portugeesch Timor,” 476, 475, 476.

33. Ibid., 475, 476.

34. Increasingly specific land regulations governing Timor in 1901–1923 were compiled for publication in 1924 of the Provincia de Timor, a little-used source providing rare insight into Portuguese colonial perspectives on land regulation. Hereafter page references to Provincia de Timor are cited in the text.

35. Later interpretation of this law clarified that natives were permitted to cultivate land and to use it for residence, but that land remained in the direct domain of the state (147). For implications of this designation over a century later, see Almeida, Land Tenure Legislation in Timor-Leste.

36. Cardoso, “Serviços Agrícolas,” 30. Shepherd and Palmer, in “Modern Origins of Traditional Agriculture,” offer a comparative interpretation of colonial policy’s interaction with swidden agriculture.

37. Such restriction on native land sale was common in Pacific colonial regulations around the turn of the twentieth century (Rêgo, “Alguns Aspectos do Direito Privado”; Ward, “Land, Law and Custom”; Rodman, “Breathing Spaces”; Legge, Britain in Fiji). In the late 1800s, myriad sales, contracts, and other arrangements occurred between non-natives and natives; this raised concerns for some that natives would soon be left landless, thus disrupting native society and leading to widespread conflict over land. It also created a bureaucratic nightmare, in which total area subject to conflicting land claims totaled more than twice the national territorial area in one instance (O’Meara, “From Corporate to Individual Land,” 115). Even where sale of native land to non-natives (“alienation”) was not forbidden outright, most colonizers sought to regulate or minimize this activity in the early 1900s to protect the commercial interests of their compatriots (from unclear tenure disputes), to assert state rights over “empty” customary land, or to co-opt traditional leaders by allowing designated chiefs to receive rent (Larmour, “Alienated Land”).

38. Câmara noted that the authors of the 1901 law were informed by the African colonial situation, so the law’s major contribution in Portuguese Africa was to regularize land concessions in the many plantations there. However, with few plantations in Timor, development of indigenous land was the most important effect (Provincia de Timor, 149). For a detailed analysis of the implementation across Portuguese holdings in Africa, see Havik, Keese, and Santos, Administration and Taxation (1900–1945).

39. The Portuguese propriedade perfeita is translated as freehold in English and hak milik in Indonesian (Programa de Legislação de Terras, Glossário Terra-Glosariu, 8). Although the law does not state so explicitly, this almost certainly was limited to permanent cultivation, and did not recognize the claims arising from swidden cultivation (cf. Larmour, “Alienated Land,” 5–6).

40. Martinho, Timor, xxii.

41. Martinho, Problemas Administrativos, 125.

42. Ibid., 126. The patchwork agricultural pattern of planting in small dispersed fields, and the ubiquitous practice of farming annual crops on land belonging to other people, is still common today in Timor (Meitzner Yoder, “Tensions of Tradition”).

43. Martinho, Problemas Administrativos, 126–27.

44. Martinho, Timor, 230–31.

45. Money, Java, 86, 88.

46. Martinho, Problemas Administrativos, 114. In 1901, Timor’s provincial administration ran at a budget deficit, compounded by an increase in public spending without a corresponding increase in tax revenue (Havik, Keese, and Santos, Administration and Taxation (1900–1945), 56–57). In response, colonial administrators in Timor added a new “head tax” in 1908, which was often paid in the form of mandatory labor on government plantations. The sharp 1911 increase in this tax contributed to conflicts across the colony.

47. Martinho, Problemas Administrativos, 121, 122.

48. Ibid., 117–18.

49. Martinho, Timor, 231.

50. Ibid., 231–32.

51. The governor took a dim view of separately transacting or owning land and the plants or structures on it (156–57). Disallowed in most Western law, this is a common practice in the Asia-Pacific region (Peluso, “Fruit Trees and Family Trees”; Van Trease Politics of Land in Vanuatu; Ward and Kingdon, Land, Custom and Practice in the South Pacific). The Portuguese interpreted separate transaction of plants as strategic evasion of the restrictions on native land sales (152–53). Recent studies indicate that separable rights remain common in Timor-Leste and that “it may be appropriate … to consider including provisions for separable rights in the development of land laws” (Urresta and Nixon “Report on Research Findings,” 29), but this is now disallowed with the adoption of the civil code (Almeida, Land Tenure Legislation in Timor-Leste, 6–7).

52. Dores Soares, Hukum Agraria Portugis, 11–12.

53. Shepherd and McWilliam chronicle in “Cultivating Plantations and Subjects” how this era’s initiatives were linked to state promotion of a form of “communal property” toward the end of fostering plantation development, and how this was transformed in subsequent years.

54. The reasons for such reluctance are not named, but it could be linked to avoiding the planned land tax, or perceived loss of power of customary authorities who then did not support the legislation. Martinho noted that property registry, detailed as it was, had null value to the Timorese (Problemas Administrativos, 127).

55. “Inquérito e outros documentos,” 144–45.

56. Ibid., 145.

57. Ibid., 172–79.

58. Ibid., 173–79.

59. Martinho, Problemas Administrativos, 117–34.

60. Ibid., 119, 129, 127.

61. Land and Property, Map Showing Certificates of Title; Sousa Xavier, “Land Rights and Sustainable Development,” 102; Suryosuwarno, Pemilikan Tanah di Timor Timur, 6. Other estimates for the total number of Portuguese titles are 2843 (Cruz, “Studi tentang penguasaan,” 44), and 2850 (Suryosuwarno, Pemilikan Tanah di Timor Timur, 6). For the 1900–1975 period, it was noted that approximately 26% of total alvará—including native and non-native, urban and rural—were issued in the 1910s, followed by the 1960s (20%), 1950s (18%), and 1970–1975 (16%) (Susanto, Analisa dan Evaluasi Hukum, 20; and Suryosuwarno, Pemilikan Tanah di Timor Timur, 10). Approximately 39% of registered Portuguese titles were held by people classified as Chinese, largely traders (Suryosuwarno, Pemilikan Tanah di Timor Timur, 5).

62. Only 444 alvará, 16% of the total, were issued between 1920 and 1950 (Suryosuwarno, Pemilikan Tanah di Timor Timur, 10). In 1930, there was limited land surveying associated with titling (Duarte, Timor, 312).

63. Caetano, Colonizing Traditions; Fitzpatrick, Land Claims in East Timo, 153; Dores Soares, Hukum Agraria Portugis; Susanto, Analisa dan Evaluasi Hukum; Suryosuwarno, Pemilikan Tanah di Timor Timu.

64. At least two-thirds of alvará were issued before legal distinctions between native and non-native were eliminated (Suryosuwarno, Pemilikan Tanah di Timor Timur, 10).

65. Stoler, “Sexual Affronts and Racial Frontiers,” 520.

Additional information

Notes on contributors

Laura S. Meitzner Yoder

Laura S. Meitzner Yoder is Director and John Stott Chair of the Program in Human Needs and Global Resources and Professor of Environmental Studies at Wheaton College, Illinois, USA. Her scholarship in political ecology engages multiple dimensions of human-environment interactions: agricultural biodiversity, land and forest authorities and access, and rural land policy. She has worked with local universities and research institutes, NGOs, and international programs in Latin America and Southeast Asia, especially in Indonesia, Thailand, and Timor-Leste. Her recent publications with reference to Timor-Leste have been published in Development and Change, Land, The Asia Pacific Journal of Anthropology, and Journal of Southeast Asian Studies.