451418607 Land Administration

1
451-418/607 Land Administration
Tool 2 Legal Principles
2
Overview

• Objectives
• To broadly understand the role of legal
  frameworks in societies
• To understand how legal systems relate and
  underpin land administration systems
• Topics
• Introduction to legal systems
• Legal systems and LAS
• Reading
• Glenn, H. Patrick, 2004, Legal Traditions of the
  World Sustainable Diversity in Law, 2nd edition,
  Oxford University Press, Oxford.
• Williamson, I.P. 2001. Land Administration "Best
  Practice" providing the infrastructure for land
  policy implementation. Journal of Land Use
  Policy, 18 297-307

3
Exam question

• Explain basic legal arrangements needed to build
  a LAS to support either -
• A successful land market, or
• Life styles of indigenous people.
• Use examples drawn from country case studies
  (other than your own country case study).

4
What are legal systems?

• Why do we need them?
• How do we create them?
• How do we administer and enforce laws?

5
An introduction to legal systems
6
Legal systems are a subset of Normative systems

• Normative systems are
• systems of rules and expectations
• Normative systems can be
• Religious
• Social
• Legal
• Administrative
• Animist/traditional/chthonic (Eg Adat in
  Indonesia)
• Paradigms of scientific discourse

7
How are legal normative systems created?

• They relate to an order a legal order
• They depend on institutions and ideas
• Example Westminster system
• Separation of powers
• Montesque three branches of government
• Executive (administrative), Legislative,
  Judicial.
• Two basic models presidential (USA), and prime
  ministerial (UK, Aus, India, NZ, Can. S.A.
  leader from majority party in parliament).
• Parliament makes the laws the executive designs,
  generally.

8
But, first we require some form of constitution

• Most nations are single jurisdictions
• One Parliament (unitary states).
• New Zealand one parliament consisting of one
  legislative house.
• Many are federations of jurisdictions
• State, provincial and National parliaments.
• USA, India, Canada, Malaysia, Russia, Argentina,
  Venezuela, Brazil, Mexico, Germany, Switzerland,
  Pakistan, Oman. (Sudan? Ethiopia? Nigeria???
  Iraq?????)
• Australia has 1 national, 6 state, 2 territory
  and 675 local governments for 21m
  people. http//www.alga.asn.au/links/obc.phpa1
• Which system is easier to manage?

9
Constitutions are the source of political power
and law making capacity in nations
Federated states (green). Unitary states
(grey). Wikipedia Commons, 2007
10
Traditional legal systems

• Common law systems Ethic of adjudication
• Civil law systems Centrality of the person
• Chthonic systems Recycle the world
  (traditional)
• Talmudic systems The Perfect Author
• Islamic systems The Law of later revelation
• Hindu systems Law as King, but Which Law?
• Asian systems MAKE IT NEW (with Marx?)
• Glenn, H. Patrick, 2004, Legal Traditions of the
  World Sustainable Diversity in Law, 2nd edition,
  Oxford University Press, Oxford.

11
Common law systems

• In world context adjudication.
• Judges interpret the parliaments words.
• Judges decide case, by case, by case.
• Accumulated decisions announce judge made law
  and interpretations of legislation.
• Judges use these ever-changing laws and
  interpretations to determine disputes.
• So judges can update the constitution.

12
Typical legislative framework

• Parliamentary statues
• Acts Acts specifically delegate parliamentary
  power down a chain.
• e.g. Transfer of Land Act 1958 governs Land
  Registry Victoria
• Subordinate legislation
• Regulations (governor in council).
• Rules (other authorised groups)
• e.g. judges making court rules
• Administrative rules
• Registrars powers to define registrable
  instruments.
• codes, standards, etc ??
• Binding members of the group that makes them.
  Normally they stand alone. But they can be
  adopted by reference back into an Act, regulation
  or rule.

13
Civil law systems (most common)

• Based on Roman Law
• Rely on codes (some exceptions). Short
  statements of legal principles. Compare 1000s of
  statute pages in common law systems.
• Code, not judges, is the source of law
• Judges apply and interpret the code. They dont
  make law.
• Courts use inquisitorial system. Judges control
  the courtroom and even investigations of facts.
• Judges are part of the administration, not
  separate.

14
Many countries now have a mix (thanks to
colonisation)
Figure 2.9. World map of legal origins (Source
The World Bank Doing Business in 2004, Figure 7.2)
15
Modern legal systems SHOULD pass public use tests

• Can I find the law?
• The Acts?
• The regulations and rules?
• The codes?
• Judges decisions?
• http//www.austlii.com.au
• http//www.dms.dpc.vic.gov.au/
• Can I understand the law when I read it?
• Can someone explain the hard parts to me?
• Where do I complain?

16
The role of legal systems in land administration
17
LAS and legal systems

• There is a direct relationship between successful
  
• Parliamentary democracies
• Land markets, and
• Their LAS.
• The theory goes something like
• Private ownership involves state relinquishing
  power over land to people and creates many
  players in politics.
• Distributed power over land means distributed
  wealth ability of many to control government.
• Government provides the LAS transparent and
  accountable institutions which support private
  ownership and power.

18
LAS and legal systems

• Laws must
• define the institution of property that is
  managed by systems built by land administrators.
  LAS manages the Where? When? How? What? Who?
• formalise people to land relationships
• formalise restrictions on land
• Laws dont do this alone they need to be
  supported by other LA tools
• e.g. cadastral mapping, land policy

19
LAS and legal systems (cont)

• At a practical level laws define
• Tenures the rights, estates, interests in land
  and resources (including water)
• Transactions sale, mortgage, lease etc
• Agencies and organisations the generals
• Professions and their regulation
• Inheritance and social transitions of land
• Participation of individuals and companies
• Building, planning, taxing, development,
  environment and 5000 other things .

20
LAS and legal systems (cont)
Tool 2

• LA Tool 2, Legal Principles
• Land policy must drive legislative reform
• Integrated land administration legislation ie
  National Land Code
• Less regulation rather than more
• Regulations should be generic and broad
• Regulations should have sunset clauses
• Regulations should facilitate land administration
  processes
• Overall, law should deliver security of tenure
  and minimise disputes.

21
LAS and legal systems(in the west)

• Civil law and common law countries
• Both support market based land administration
  systems
• Similar institutions property, legal order,
  contracts, corporations, democracy,
  inheritance
• Similar organisations parliaments,
  administrations and courts
• Similar LAS agencies and organisations land
  registries, cadastres, surveyors boards
• Similar professional groups

22
LAS and legal systems (in the west)

• The balance of power
• Theory of Westminster system is to balance power
  among the three arms of government Executive,
  Legislative, Judicial
• For land administration Executive through
  Legislature (parliament) makes the laws about
  institutions and functions. Judges solve
  disputes.
• System of generals registrar general, valuer
  general, surveyor general.
• Each runs his own institution, reports to his
  minister, and never talks to the others. SILO
  systems.

23
But

• All the above LAS and Tool 2, Legal Principles
  relate to our Australian statute book and LAS
• The principles test efficacy of laws in a
  well-run parliamentary democracy
• Countries not parliamentary democracies need
  DIFFERENT LEGAL PRINCIPLES.

24
Transporting Western institutions

• Debate Should we transfer western ideas of
  property, agencies and processes
• Some say it cannot be done.
• Others say it can.
• Many quarrel about whether it should.
• REMEMBER LAND IS ABOUT PEOPLES IDENTITY. Change
  land and you change identity
• Land administration assumes that transport is
  possible.
• Land administration does not assume transport is
  always possible.
• Land administration defines SUCCESSFUL transport
  opportunities by FIRST looking at the on-ground
  situation.
• UNIVERSAL people want their land protected.

25
Major issues for transporting LAS institutions
and agencies

• Transportation of property in land crucial
  for land markets
• Transportation of technical facilities crucial
  for modern land management but many countries
  cannot sustain hi-tech systems use an
  appropriate system
• Transportation of administrative arrangements
  depends on legal heritage and national
  constitutional arrangements
• Transportation of capacity education is the
  major focus.
• Remember Glenns types of legal traditions, and
  try to understand the local situation, colonial
  experiences, peoples needs and aspirations.

26
A quick exerciseEvaluating Australias LAS
statute book

• Score Australias legal systems against Tool 3,
  Legal Principles
• Use the following rating system
• Bad
• Rough and ready
• Bare pass
• Ok
• Great

• Does land policy drive the creation of
  legislation?
• Do we have an integrated Code?
• Do we create less, not more legislation?
• Is our legislation generic, not specific?
• Do we use sunset clauses?
• Do our laws facilitate LAS processes?
• Do our laws deliver security of tenure?
• Do our laws minimise disputes?