Court rejects 6 Beduin Negev land lawsuits (JERUSALEM POST) By JOANNA PARASZCZUK, SHARON UDASIN 03/20/12)
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In a precedent-setting ruling on Sunday, the Beersheba District Court
rejected six lawsuits brought by Beduin regarding private ownership
of some 1,000 dunam of land in the Negev.
Seventeen Beduin, 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
Beduin and land laws dating back to the mid-19th century. The Beduin
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
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 Beduin city of
Rahat – includes the hotly contested area known as al-Arakib, the
site of an ongoing and bitter conflict between Beduin and the state.
Temporary shacks built by the Beduin 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 Beduin 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
At the heart of the case was the debate of whether the Beduin 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,
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 Beduin could register land classified as Mawat as privately
owned was 1921, however the al-Uqbis – like most Beduin – had not
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 Beduin, 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
Beduin 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 Beduin 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
Beduin’ 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 Beduin to
organize land ownership according to Beduin 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 Beduin 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 Beduin, 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 Beduin were considering whether to appeal to the
“[The ruling] is troubling first and foremost ´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
Bedouins 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 Beduin 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
Beduin in the early 20th century, which gives them land rights,” he
said. “Yet the court claimed that no Beduin settlement and rights
existed then. Where did the Beduin farmers live – in mid-air?”
Yiftachel added that recognizing the fact that Beduin 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 Beduin 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. (© 1995-2011, The
Jerusalem Post 03/20/12)
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