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451418607 Land Administration

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... require some form of constitution. Most nations are single jurisdictions ... Constitutions are the source of political power and law making capacity in nations ... – PowerPoint PPT presentation

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Title: 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 exercise Evaluating 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?
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