Israeli Court rejects 6 Bedouin Negev land lawsuits

Members of the Al-Uqbi family argued that they owned land, including at al-Araqib, since Ottoman times.

By Joanna Paraszczuk and Sharon Udasin   19 March 2012         Jerusalem Post

http://www.jpost.com/NationalNews/Article.aspx?id=262501

In a precedent-setting ruling on Sunday, the Beersheba District Court rejected six lawsuits brought by Bedouin regarding private ownership of some 1,000 dunam of land in the Negev.

Seventeen Bedouin, members of the al-Uqbi family, filed the six land claims. The complex and often bitter legal proceedings went on for over six years, and discussed in detail the history of the Negev Bedouin and land laws dating back to the mid-19th century. The Bedouin claim the land had belonged to their families since before the establishment of the State of Israel in 1948, and that it had come into their possession by means of purchase and inheritance over generations.

However, in 1951 they say they were evacuated from the land when the IDF confiscated it, and since then the state has not granted them permission to return, and has said the land belongs to the state and was never privately owned.

Significantly, the land in question – south of the Bedouin city of Rahat – includes the hotly contested area known as al-Arakib, the site of an ongoing and bitter conflict between Bedouin and the state. Temporary shacks built by the Bedouin in al-Arakib were demolished by the state and rebuilt on more than 10 occasions, the last in 2010, and last year the state filed a NIS 1.8 million lawsuit against two Beduin families over the issue.

During the al-Uqbi lawsuit, both the state and the Bedouin brought extensive expert testimonies, pitting the country’s most prominent experts in historical and political geography against each other. For the plaintiffs, Ben Gurion University’s Prof. Oren Yiftachel, one of the country’s foremost geographers and social scientists, gave expert testimony. Testifying for the state was Prof. Ruth Kark, a leading expert on the historical geography of Palestine and Israel from the Hebrew University.

At the heart of the case was the debate of whether the Bedouin were able to prove that they had private land rights to the disputed plots, despite a lack of formal land-title deeds showing the land had been registered in their name in the Ottoman land registry, the “Tabu.”

Central to this was the question of the land’s legal classification under Ottoman and British rule, and whether it had been a form of state land, known as Mawat (wasteland that could not be cultivated). When the Israel Land Law abolished the old Ottoman land classifications in 1969, it said all land would revert to state lands, unless a claimant could produce proof of private ownership in the form of Ottoman or British legal title.

The British Mandate authorities stipulated that the last date by which Bedouin could register land classified as Mawat as privately owned was 1921, however the al-Uqbis – like most Bedouin – had not done so.

In court, the al-Uqbis argued that the state’s order to expropriate the land from them in 1951 was made on the erroneous assumption that under Ottoman law the land was classified as Mawat. They said that the land had been cultivated and owned by them, and so classified as Miri land under Ottoman legal terms.

Mawat lands were both uncultivated and not adjacent to settled lands. The Bedouin, who argued that the el-Ukbi families had lived in al-Arakib before the State of Israel was established, testified that there had been tents and other structures on the land, and that Bedouin residents had cultivated barley and wheat there. Therefore, they argued, the Ottoman authorities cannot possibly have classified it as Mawat.

In an expert opinion filed to the court, Yiftachel said that these “tribal areas” of scattered tent clusters were not at that time registered with the authorities, but were nevertheless considered “settled” and met the definition of a “village” in the 1921 Land Ordinance.

The Bedouin also presented aerial photographs from 1945 onwards, which they said showed there had been extensive cultivation covering al-Arakib, meaning that it could not have been classified as Mawat land.

The state’s expert witness, Prof. Ruth Kark, gave the complete opposite view, and said that prior to 1858, there had been no fixed settlements on or near to the disputed land. The first fixed settlement had been Beersheba, she said, which the Ottomans founded in 1900 and which is 11 kilometers from al- Arakib – refuting the Bedouin’ claims that the land could not have been Mawat because it was both cultivated and next to a settlement.

They also contended that the Ottoman, and later the British, authorities had granted legal autonomy to the Negev Bedouin to organize land ownership according to Bedouin law, which is why it was not registered as theirs in the Tabu.

However, the court did not accept this claim, saying that if the Ottoman authorities had wished to exempt a particular population from the law, then they would have done so explicitly.

Rejecting the claims, Judge Sarah Dovrat concluded the the land in question had not been “assigned to the plaintiffs, nor held by them under conditions required by law.”

“Regardless of whether the land was Mawat or Miri, the complainants must still prove their rights to the land by proof of its registration in the Tabu,” the judge said.

Dovrat added that “although the complainants believe they have proof that they held the land for generations, and that four families from the el-Ukbi tribe cultivated and owned the land, such claims require a legitimate legal basis in accordance with the the relevant legislation and according to precedents set out in case law.”

The judge held that the plaintiffs’ documents indicated that they knew they had a duty to register land in the “Tabu” (the land registry) but had not wanted to do so. “The state said that although the complainants are not entitled to compensation, it has been willing to negotiate with them,” the judge added. “It is a shame that these negotiations did not reach any agreement.”

The court also ordered the Bedouin complainants to pay legal costs of NIS 50,000. Attorneys Michael Sfard and Carmel Pomerantz, who represented the Beduin complainants, slammed the ruling, which they said went against an international trend of recognizing the rights of indigenous peoples to their historic lands.

“In its ruling, the court affirmed the practice of expulsion that the state carried out against the Negev Bedouin, and found that 60 years afterwards there is no point in testing whether that massive expropriation of lands was legal or not,” Sfard said on Monday.

Sfard and Pomerantz added the the court did not “take the opportunity to recognize, even symbolically, the historical injustice perpetrated to the residents of these lands, whose ancestors lived there for centuries.” Yiftachel called the decision “troubling,” and said on Monday that the Bedouin were considering whether to appeal to the Supreme Court.

“[The ruling] is troubling first and foremost because it unjustly dispossesses many Bedouins who have simply inherited the land from their ancestors. The court decided that just because they didn’t register their land, they ought to lose it,” Yiftachel said. “It’s a sad irony – Jews who bought land from Bedouin in Northern Negev became recognized owners, while the people who sold them the land are now being dispossessed.”

Yiftachel said that the court had ignored new research he presented, which he said showed the Bedouin had “acquired rights within a permanent land system they developed and how previous regimes have respected those rights.”

“Most researchers agree that 2-3 million dunam were cultivated by the Bedouin in the early 20th century, which gives them land rights,” he said. “Yet the court claimed that no Bedouin settlement and rights existed then. Where did the Bedouin farmers live – in mid-air?”

Yiftachel added that recognizing the fact that Bedouin did own parts of the Negev for generations was “not only a moral duty of any enlightened state, but also the key for good Arab-Jewish relations on which the Negev will depend for years to come.”

“Whatever the court decision, I am committed to the truth,” he said.

ILA director Benzi Lieberman welcomed the court’s ruling, and said on Monday that the ILA expected the Bedouin claimants to respect it and “stop trespassing” on the land.

“The ILA will do all in its power to keep state land from trespassers – and this includes farming – in order to safeguard the land,” Lieberman said, adding that the ILA would file lawsuits against those who trespassed on state land.