8/9/14 

The High Court of Justice issued yesterday (7/9/14) a detailed pre-ruling decision on a petition by landowners from the village of Nahla, located northeast of Efrat, contesting the declaration of 1,341 dunams as state lands. In its decision, the court rejected most of the petitioners' arguments, but suggested referring the case back to the appeals committee in order to discuss the question of whether it is possible to declare a parcel of land as state land if only part of it is being cultivated.

The state must announce by September 30, 2014 whether it accepts the court's proposal.

Download the court's ruling (in Hebrew) here

Background

In August 2004, the Israeli Civil Administration declared 1,341 dunams of land adjacent to the Nahla village and Efrat settlement as state lands. The designated territory, referred to by the settlers as "Givat Eitam," is earmarked for the expansion of the Efrat settlement. Under a Ministry of Housing plan that is still awaiting approval, some 2,500 housing units are slated to be built. This would have a far-reaching impact on the chance of reaching a two-state solution. (See details here.)

The landowners appealed the declaration to the military appeals committee, and after their appeal was rejected, they submitted a petition to the High Court of Justice via Attorney Sani Khoury.

High Court test on the method of 'declaring state lands'

About a week ago, some 4,000 dunams in the Bethlehem area were declared state lands. The declaration elicited harsh criticism of the government's policies and the system of "declaring state lands" as a way of gaining control of lands for settlement purposes. The declaration is based on Israel's interpretation of Ottoman land law, according to which the state can expropriate land that has remained uncultivated for ten years. In its decision, the High Court affirms the system in principle, but seeks to examine the question of declaration vis-à-vis a parcel of land that is only partly cultivated.

And this is how the High Court justifies the system:

The petitioners' argument – the declaration is actually expropriation. It turns private land into state land; and since it is prohibited to expropriate private lands in occupied territory for settlement purposes, the declaration is illegal.

The High Court's decision – the declaration is not expropriation. It does not change the status of the land; it only declares its status from a substantive perspective. The president of the Supreme Court, Asher Grunis, explains in the decision that according to Ottoman law, land can be privately owned only if the owner holds a deed to the property or proves that the land has been cultivated for ten consecutive years. Therefore, in the case of uncultivated land, there is no private ownership and its declaration as state land does not change the status of the land – it merely resolves the land's status.

The petitioners' argument – discrimination on an ethnic basis: declaration for Palestinians only. The area includes an uncultivated parcel of land that according to the state's system ("the substantive law") should also be declared state land. However, it remained outside the bounds of the declaration. The lands coordinator of the Efrat settlement testified in the appeal that it was purchased by Jews and therefore was not included in the declaration.

The High Court's decision – the petitioners did not explain which land they were referring to. It should be noted that in the discussion at the High Court, the justices asked to see the map on which the lands coordinator marked the parcel acquired by Jews. But the appeal file from the appeals committee disappeared inexplicably.

The petitioners' argument – the aim of the declaration is to expand the Efrat settlement. Throughout the discussions of the petition, the state did not deny that it intends to allocate the land for expansion of the Efrat settlement. According to the petitioners, this is a discriminatory outcome because the land will be given to settlers and not to Palestinian residents of the area.

The High Court's decision – the land was not yet allocated to the settlement, so it cannot be argued that the declaration in itself engenders discrimination. It should be noted that although there was apparently no agreement allocating the land to the settlement, the land has already been attached to Efrat's area of jurisdiction.

The petitioners' argument – the settlers prevented us from cultivating the land. Throughout the discussions, the petitioners argued that the lands coordinator of the Efrat settlement served as a land inspector in cooperation with the Civil Administration, and that he prevented the landowners from working the land.

The High Court's decision – we do not intervene in a factual determination by the appeals committee. The appeals committee heard the testimonies and decided that even if there was some interference by the lands coordinator, it is nonetheless true that the land was uncultivated during the years that preceded this. 

The petitioners' argument – we have a deed to the property.

The High Court's decision – we do not intervene in a factual determination by the appeals committee. The appeals committee determined that the petitioners did not succeed in proving that the deed they have refers to the relevant land, because the boundaries of the Ottoman deed are imprecise and are not based on a land survey.

The question that remains for discussion:

The land includes parcels which were only partly cultivated. The state divided these parcels and declared the uncultivated part to be state land. In other cases, where less than 50% of the parcel was cultivated, the whole parcel was declared as state land. The petitioners argued that there are no grounds for dividing the parcels, and that as long as a section of the parcel is cultivated – the parcel cannot be declared state land.

The court suggested that the state agree to send this question back to the appeals committee for discussion, and ordered the state to announce whether it agrees to this by September 30, 2014. If the state agrees, the case will return to the appeals committee and it might take another year or even 2-3 years to complete the discussions and approve the declaration. The state may refuse to agree to return the case to the appeals committee and try to persuade the court that it was not necessary, and then the court may either give its own decision on the matter or rule that the case will return to the appeals committee without the state's consent.    

The area of "E2"- the planned settlement in Nahla