Partner and Program Manager, CDR Associates
Interviewed by Julian Portilla, 2003
This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).
Q: Talk to me about East Timor a little bit.
A: Okay, well the context of East Timor is that it was a Portuguese colony up until 1975, when the Portuguese left pretty precipitously. The Indonesians invaded and took it over, claiming that it was, from their point of view, legitimately a part of Indonesia. And they have a legal argument that they put forth about that, that the East Timorese don't buy, but they allege that. There really was a military occupation for 25 years from '75 to 1999 when there was a plebiscite. After the Suharto regime folded the successor regime agreed to hold a referendum in East Timor regarding the question of independence. That was I think August or September of '99 and the vote went strongly for independence, and those forces within East Timor who were allied with Indonesia, either militarily or for whatever other reasons, then withdrew. The military then trashed the country on the way out, destroyed 70 percent of the buildings, gutted government buildings, including the Land and Property Directorate, which is the equivalent of the county clerk's office in Colorado where you register a deed. So it's a place where property records are kept, deeds and land titles are registered there. So they trashed that facility, although a copy of some of it was on microfilm and had been sent to Java to a national archive in Indonesia, but the Indonesians have refused to give a copy of that record to East Timor. Or it's part of a negotiation process between the two, trying to settle a bunch of issues.
Meanwhile, the staff of the Land and Property Directorate, the ones who remained behind who were East Timorese, then sifted through the rubble and got some records and found some things, but it's a really incomplete set of documents. So, you've got a very complex situation with regard to land ownership in East Timor. You've got folks that have Portuguese titles, which are pre-'75 titles. You've got people that have Indonesian titles, which might be for land that was expropriated by Indonesia. Say somebody left in '75, and went into exile because they were associating with the independence movement in East Timor. So Indonesia might have just expropriated that. Let's say we're talking about a house in the capital, in Dili.
They might have just taken it over. And then, you know, whatever Indonesian official might have sold it to someone else and the new person was given an Indonesian title, and then they might have sold it to a third person and a fourth person, so you might have three or four owners over a 25-year period, all based on an expropriation by Indonesia, which would be viewed by East Timor as illegal. And then you might have an exile coming back, who left in '75, and he says where's my house, and here it is and somebody's living in it, and he says well I have this piece of paper from Indonesia that says I own this place. And the guy from pre-'75 says, but it's my family's house, we lived here for 50 years. So, who's house is it? Those are the kinds of conflicts that are coming up.
Also inheritance, you know, people who died at various times during this whole chaotic period, and then who gets the inheritance, and does anybody have any record or are there any wills, or things that show how property should be transferred. Then, aside from the Portuguese and Indonesian titles, the vast majority of the land in East Timor is not owned personally, but by tribe. And then individual families are granted use rights on those tribal lands through an informal process of the tribal leadership saying, well, you and your family, you can have these, you know, five hectares, and that's yours to plant. And, you know, you get the results of your labor on that land, but you don't own it, it's still held by the tribe. Those tribal lands are under a set of laws, which are called Adat laws.
Adat is the traditional legal system, which varies from area to area throughout Indonesia, and even can vary from valley to valley, because you have different ethnic groups, and so different interpretations of those traditional legal practices. So, you've got three different legal processes, one of which is incredibly varied, the Adat system, because it is culturally variable and locally determined. You know, it's completely topsy-turvey if you look across those areas, but usually within a particular area everybody is clear about who is a decision maker and how the decisions are made. It sounds very simple. However, there's political overlay in the question of which families have land. Were they in a militia, funded and given arms by Indonesia, and then did they shoot their neighbors during the '99 chaos? Did they flee as refugees to West Timor for a period of time? Is the tribal decision maker more allied with the liberation forces, and therefore if a family comes back and claims the land, will the decision maker have a bias in determining whether that family gets to use the land that they may have used for hundreds of years? The recent political events create some difficulty. And, does it even make sense for that family to come back, because they might be shunned or attacked or whatever by their neighbors for events that happened. So these things are very complicated.
Q: It sounds like the standards by which you determine whose property it is are completely un-firm.
A: Variable, right. And, I can't remember what the numbers are, but very few lawyers in East Timor are left, some who were in exile and came back and a few that were lawyers under the Indonesian system that are remaining. But there are no judges and no courts. The buildings were destroyed and most of the judges are gone. All of the other judges during the Indonesian period were Indonesian, and it was all mostly military law anyway. It was military occupation, not civilian rule. So there's essentially no court system right now in East Timor. So that's the challenge that we were working with the East Timorese on.
Q: When you say we, you mean the people at CDR?
A: Yes, at CDR.
Q: CDR gets a call from...?
A: It's a complicated way of entr‚e. After '99 the UN set up an administration that lasted until Spring, 2002. So for three years it really was a UN administration in East Timor. One of the UN advisors to the Land and Property Directorate, in the Ministry of Justice, a general, was a Canadian who Chris had worked with in post-war Guatemala on setting up some systems there.
So he said, oh, I know exactly who can help us here. So he knew Chris and e-mailed him and then they had an e-mail correspondence back and forth. The Canadian government agreed to fund some work on setting up a mediation system for land and property disputes. And then it went back and forth, and various UN advisors came and went, and three advisors later things had settled down and the new East Timorese administration had taken over, but the Canadians were still willing to pay for this mediation process. So the present UN advisor, who's an Ecuadorian who works closely with the Land and Property Directorate, thought that this was a really good idea and really supported it, and worked with the director of the Land and Property Directorate to set this up. So eventually this all happened. Chris went out in December and did a basic mediation training program with the guys. It turned out that they didn't really know what their mediation system was going to look like, so Chris actually spent the first couple of days doing a dispute resolution system design.
Q: Right, so when you get a call, they say, we want to develop a mediation system to determine who owns what property and how to settle ?
A: Resolving disputed claims.
Q: Okay, and that was the UN idea before the CDR, and they said we know who should do it, it's CDR.
Q: But you didn't come in and say, okay, you guys need a mediation structure here?
A: No. And by the time we came in last December, we thought they would have resolved a lot of questions of who the mediators were going to be, how they were going to work at a community level, how cases were going to be received, what kind of cases were in, what kind of cases would not be done this way. We thought all that would be in place, but no, it wasn't. So there was more of a design question, not just training individual mediators, but those larger systems designs questions had to be resolved as well. So Chris spent the first couple days of what was supposed to be a five-day mediation workshop working on dispute systems design. And what they determined was that rather than have the mediators all come from the Land and Property Directorate, the Directorate's staff mediators would work with local leaders to co-mediate cases. Of course then there were going to be these other political questions about whether the local leader is trusted. So you had to do some discernment about which local guys to train up as mediators and which not to. And I don't know how they're going to do that, but that's up to them, essentially.
Q: That's not CDR's choice to decide?
A: No. No, no, no. I mean it's not our choice even to designate who the mediators are going to be. That's up to the Land and Property Directorate. They're the ones who recruited the folks into the mediation training program. And the initial group was all their staff, and those staff members will be mediating cases, but they'll be doing it as co-mediators with local leaders. So we had a mediation program in December, we followed that up with a multi-party mediation program in February. We were looking where the dispute was not just between two people, but might involve other folks, neighbors, multiple folks that are claiming something, multiple family members that are claiming inheritance, where it might involve some tribal representatives as well as individual families. So, we were looking at a whole range of different ways that you might have multiple parties involved. And then in March we went back, and I went on the March trip to do a training of trainers, because they need to train all these local folks as mediators, not just go out and assume they'll be able to become mediators, but to have a training program for that. So we were training people to go out and train other people.
There's going to be a fourth training. It's still undetermined exactly what that's going to cover. It could be an advanced mediation program, but there are several other topics that could be a part of that. This is a case where what we're really talking about is institutional development. It's not the same as going out and mediating a single dispute. We're trying to help them set up a system for handling multiple disputes in the context of the society, which is trying to recover from fundamental trauma and destruction, and they're really building a government, and it involves infrastructure, from the ground up.
In this situation a mediation process is going to be faster and cheaper than trying to get a judicial system up and running. They may ultimately need some kind of an appeals process from mediation to a land court or something like that. In the next couple years they may be able to set that up, but meanwhile they have to do something to resolve these disputes, and lacking lawyers and courts and judges, which is going to be expensive to set up, this mediation process seems to make a lot of sense for their context.
Q: It seems that if there were a justice system, standards could be established by which to determine what property belonged to whom. There's sort of a tradeoff between individual settlements of cases versus large legal-rights-based understanding of who owns what.
A: Well, everything still has to be done within the context of laws. They've passed a land ownership law that determines who can own land. For instance, that law says foreigners can't own property in East Timor, and then they define what a foreigner is or who is East Timorese. That law also provides for mediation of disputes as one way to handle disputes, but there'll be subsequent laws that will enshrine in law this process of mediation with an appeal to some kind of a land court. And those laws are in draft at this point. There's another law that provides a process for people making claims, and they're in the process of developing the regulations for that, what the form looks like and where you can file it and what language it needs to be in and how many copies and what kind of documentation you need to provide along with your claim and those kind of things. All that stuff is in development around the land thing.
So there is a legal framework, but if you use the power-rights-interest framework to think about this, for the last couple years there's been a power framework because there hasn't been any legal framework, so people are just sort of taking stuff and doing what they want because they can, or forcing other people off of land using the point of a gun or whatever they have to do. Or local leaders who have pretty unquestioned power at the local level may just say, now this family's in and that family's out. Just, bam! And that's where some of these legal claims are going to come from, where a local tribal leader has made a determination and another family decided that that wasn't fair, that there was some kind of bias in that determination. So now the country is in the process of establishing a rights-based framework, which includes all these laws, but that legal framework will include within it the interest-based provision, i.e. mediation using an interest-based approach to resolving claims, so that eventually those nested paradigms will come together in the process.
Q: When you hear about mediation you hear about win-win situations, you know, expand the pie; it's not a zero sum situation. It sounds like a lot of these situations are zero sum-you get the property, you don't get the property. How does that work?
A: That could be, but during that first training program, Chris got them to tell him multiple stories, so has like 25 different cases, he has some sort of little capsule summaries of those cases and what the issues were and all that. And some of them he subsequently wrote up into simulations for the following training. And in a lot of the cases it's just not as cut and dry as that. Let's say somebody acquired a piece of land ten years ago and planted banana trees, and so there's a crop from those banana trees. And perhaps he's also put on a new roof because the old roof was falling down, and has done some other improvements to the property. Somebody else comes in and has a pretty clear-cut claim to that property, you know, the guy who'd been there for ten years maybe with an Indonesian title, one of these transfers, is ultimately determined to be illegal. And it was through no fault of his own. I mean, he thought he was buying something in good faith and so he didn't violate law, but he doesn't have a legal to claim to the property.
This other landowner is coming back and then the other question is what do you do? Well, does the guy get payment for the improvements he made to the property? Do you find some way for him to get income from the bananas for X number of years? Say for the next five years he gets the banana crops and he has access to come in and work on that. Or maybe he gets all of it for the first two years and then the third year the other landowner gets a quarter of the income and then the fourth and fifth year they split it in half and then the sixth year the landowner, the guy that's going to be the full landowner, gets the full value. So you have ways to sort of figure those things out, and then you would resolve the roof, you know, the owner would need to maybe over time pay back the value of the roof, or they use bananas as payment, I don't know. But there are ways to sort of figure that kind of thing out.
The other deal is that is there's some way to do land swaps with other properties that the government has at its disposal, or in the countryside the tribal leaders have, so that it isn't just a cut and dry, well, you're out, you're in. And then does that just leave you homeless or is there a way to meet your needs for a home, or some way to do the timing of the transfer that makes it less burdensome, or you know, provide for some government resources for subsidy to people who've been displaced due to lands claims or something like that, which might be a small amount of money, but enough to sort of get somebody started on finding another location. So it isn't always as completely win and lose as it might be. You find ways to accommodate folks. And some people who are sitting in those properties know full well that they don't have a legal leg to stand on. Maybe during the chaos they sort of said, well, I need a house. Mine was burned, this one's whole, I'm moving in. And then they know they didn't have legal title. So we find some way to resolve that.
Q: Some people have argued that the impartial-neutral model of mediation where the person who's sitting there and facilitating the conversation doesn't know anything about the parties, doesn't really know the parties, and is just sort of trying to lead an objective conversation, that that doesn't necessarily work in some situations in Latin America.
A: Absolutely. And this goes to the cross-cultural deal. So, in East Timor we're not giving them a North American model and saying this is the way you mediate. We're giving them principles, you know, some fundamental principles of mediation and some fundamental skills, but then they've got to find their own way that works for their context. We've already noticed in watching them role-play that they're much more evaluative and directive in their mediation style than we would be here. And they're going to be co-mediating with village leaders, who intimately know the parties at one level or another who also will understand the cultural context. Because the Land and Property Directive folks are going to be urban-educated government employees, it's difficult for them to understand the cultural context among 33 language groups on this tiny island, some of which are mutually unintelligible languages. I mean, the language difficulties there are really hard because there's no dominant language.
A guy from the Land and Property Directive that grew up in X city, and is working on a case in the countryside with a tribe that he barely knows the name of, he has to depend on working with the local leadership in figuring that thing out. Because a local guy will know, you know, whether that family has legitimately been there for years and years, and those kinds of things. They'll also be doing some investigation. The land and property folks have learned a lot about going out and just walking around the land and talking to the neighbors and figuring out who was here when and what happened over the last 25 years, and was there a change in '75 and was there another change when the Indonesians left and what happened in between, and who's been occupying the land since '99, and who gave them permission to be there. Just all kinds of pulling together the facts, which in our context a mediator doesn't usually do. I mean, we might do a conflict assessment, but that's usually talking with the parties. In this case the mediator is also a fact finder.
Q: A researcher.
A: Yeah. They're doing some basic research on a case to get a sense of what's going on, and that means that then they're a source of information on the case, which means it's a different mediation model.
Q: And that's not something that you all suggested?
A: No, no, it's based on their situation and what they need to be doing, and what the role of the role of the Land and Property Directorate staff are. Now eventually it may get so that one set of staff people is doing the research and providing essentially a file to the mediator, and another staff person is then playing the role of mediator so that they're not mixing those roles. But, you know, they're understaffed and overworked, so maybe for a while everybody will be doing everything.