All Uqbi v. The State of Israel
2015 Supreme Court of Israel
Background Information
In 2015, the Supreme Court of Israel ruled on a dispute between the State of Israel and the appellants, both of whom claimed ownership of 6 land lots in the Northern Negev Desert.
The State’s claim to ownership relied primarily on the fact that the lots are located within boundaries of the blocks in that area which had been expropriated in their entirety in 1954 through the “Acquisition Law”.
Case History
The Court of first Instance held that a valid expropriation does not nullify the need to address the matter of the rights, if any, held by the Appellants prior to the expropriation. In addressing this matter, the court analyzed provisions from the Ottoman Land Code. Having done so, the Court rejected the Appellant’s argument that the lots in dispute are “Miri” lands which have been possessed and cultivated ab antique by the All-Uqbi tribe, to which they belong.The Court also rejected the appellant’s argument that at some stage, in accordance with internal arrangements made within the tribe, the ownership rights regarding such Lots were acquired by the Appellant’s family. The Court ruled that in order for land to be considered “Miri” pursuant to the Ottoman Land Code, it must be demonstrated that at some point it was assigned to some person by the relevant authorities. Court also rejected that nomadic or semi nomadic settlements can also, pursuant to the Ottoman Land Code, be considered a “town” such that lands adjacent thereto would not be considered “Mewat” land.
For the aforementioned reasons, the lower court (the Court of First Instance) rejected the Appellants claim of rights in and to the Lots, and ordered that they be registered in the name of the State and the Development Authority. They did not find it appropriate to rule that the appellants are entitled to compensation due to the expropriation of the Lots. In other words, the court ruled that the appellant never legally possessed the lots in question, and as such, they were neither entitled to its title or to be compensated as a result of their expropriation.
At the Supreme Court
The Appellant’s Arguments:
The Lower Court’s ruling was an unjust and unreasonable outcome that derives from the adoption of a historical and legal doctrine by virtue of which Bedouin tribes have been systematically dispossessed of their historical lands. The appellants dispute the court’s legal conclusion that the lots are state owned Mewat Lands.
The appellants are also petitioning to:
(A) submit additional evidence which they believe leads to the conclusion that the lands were possessed and cultivated by their testators, proving their rights in and to the lots.
(B) Argue that Ottoman administration and the British mandate government granted the Bedouin legal autonomy to manage their property/lands in accordance with traditional Bedouin Law.
Ottoman Land Code and Mewat ordinance do not apply at all to the Negev areas in question, and that the law that was in effect at the relevant time and place was traditional Bedouin law.
(C) Even if their rights to the Lots should be examined in accordance with the Ottoman Land Code (which they are disputing) and the Mewat ordinance, the court erred when ruling that the lots were State owned Mewat classified lands rather than Miri lands owned by the appellants.
The appellants point to three normative sources to make the case for having the lots registered in their name:
1. The Laws of Equity
Mandate law and case law recognize that use and possession of land for many years create equity rights therein.
2. The Basic Laws
Ottoman Land Code and Mandate Mewat ordinance should be interpreted in accordance with the constitutional principles of equality and human dignity. This warrant interpreting the land legislation that preceded the Land Law in a manner that would prevent discrimination against the Bedouin population and its continued dispossession from its historical areas of livelihood in the Negev.
3. International Law
Since the Bedouins are an indigenous group on Negev land, laws should be interpreted in a manner that grants them rights by virtue of international law
The State’s Argument
There is no substance to the Appellant’s arguments that the Ottoman Land Code and the mandate Mewat ordinance should not be applied.
• If the Ottoman legislator perceived the Bedouin’s lifestyle as a source for acquiring property rights, it would have explicitly prescribed this in law. Not doing so is an inadvertent omission, and the conclusion that should be drawn is that the Ottoman legislator did not intend to grant rights in and to the land by virtue of the Bedouin lifestyle.
In response to the case made by the appellants to grant rights to the lot based on the laws of equity, the state claims that in the absence of rights pursuant to law, it is inappropriate to adjudicate equity rights.The state further claims that if and to the extent that there is substance to the claim that the Appellant’s tribe had been settled on the Lots for many years, then this would have constituted forceful unlawful seizing of lands from the authorities’ possession. Such seizure does not grant equity rights.
In response to the argument that internal Bedouin laws grant the right to possession, the state posits that tribes do not have the power to grant a legal right in and to the land where such a right would not have existed to begin with.
With regard to international law, the State of Israel did not join the UN Declaration on the Rights of Indigenous Peoples to which the Appellants refer, and as such, does not constitute a binding international norm.
Discussion and Ruling:
The Supreme Court ruled that in the absence of any explicit evidence to indicate the granting of autonomy in the Negev area prior to the establishment of the state should be rejected.
In the absence of explicit evidence to indicate the granting of autonomy to the Bedouin tribes, neither the alleged granting of autonomy nor the alleged granting of property rights can be inferred. Indeed, the Court ruled that all 3 of the conditions for the land to be classified as Miri had been met:
1. It was not possessed by anyone and was not assigned to anyone by means of a title deed.
2. It was not assigned for public use, nor assigned ab antique to the use of inhabitants of a town or village.
3. It is barren and is more than a mile and a half away from a city or village.
As such, the Appellant’s are rejected insofar as they relate to the validity of the 1954 expropriation of the Lots pursuant to the Acquisition Law. The appellants are not entitled to compensation or to alternative land. The Court rejects the appellant’s arguments that relate to the rights they acquired in and to the lots, whether by virtue of traditional Bedouin laws, or by mandate and Ottoman land legislation, or pursuant to the laws of equity, international law, and the basic laws.