All Uqbi v. The State of Israel

Our law office in Jerusalem and Tel Aviv summarizes key Supreme Court verdicts that determine judicial interpretation of Israeli law. In this article, our real estate law experts will summarize All Uqbi v. The State of Israel which determined the right of a local Bedouin tribe to expropriated tribal land.

Background information

In 2015, the Supreme Court of Israel delivered a decision concerning a dispute between the State of Israel and the plaintiffs, who both claimed ownership of 6 plots of land in the Northern Negev Desert.

The State’s claim to ownership was first on the ground that the lots are located within the boundaries of the blocks in this area that were entirely expropriated in 1954 by the “Land Acquisition Law“.

Case History

The court of first instance held that a valid expropriation does not negate the need to address the issue of what rights, if any, the claimants held prior to the expropriation. To address this issue, the court analyzed the provisions of the Ottoman Land Code. Following this analysis, the Court rejected the appellant’s argument that the concerned lots are “Miri” lands that have been owned and cultivated for centuries by the All-Uqbi tribe, to which they belong. Moreover, the Court rejected the claimant’s argument that, at some point, in accordance with internal arrangements within the tribe, the property rights to these lots were acquired by the plaintiff’s family. The Court held that in order for land to be considered “Miri” under the Ottoman Land Code, it must be shown that at some point in time it was allocated to a person by the competent authorities. The Court also rejected the fact that nomadic or semi-nomadic settlements can also, under the Ottoman Land Code, be considered a “town”, so that land adjacent to them would not be considered “Mewat” land.

For the above reasons, the Court of First Instance rejected the plaintiff’s claim to the lots and ordered that they be registered under the name of the State and the Development Authority. It did not consider it appropriate to rule on whether the appellants are entitled to compensation for the expropriation of the lots. In other words, the court held that the appellants never legally possessed the lots in dispute, and as such were neither entitled to its title nor to compensation consequently to their expropriation.

At the Supreme Court

The Appellant’s Arguments:

The trial court’s decision is unfair and unreasonable and results from the adoption of a historical and legal doctrine under which Bedouin tribes have been systematically dispossessed of their historic lands. The appellants challenge the court’s legal decision that the lots are state-owned Mewat lands.

The appellants also request to:

(A) submit additional evidence that they claim leads to the conclusion that the lands were owned and cultivated by their testators, thus proving their rights to the lots.

(B) argue that the Ottoman administration and the British Mandate Government granted the Bedouin legal autonomy to manage their property/lands with respect to traditional Bedouin law. The Ottoman Land Code and the Mewat Ordinance do not apply at all to the Negev areas in question, and that the law in force at the relevant time and place was traditional Bedouin law.

(C) Even though their rights to the lots were to be examined in accordance with the Ottoman Land Code (which they dispute) and the Mewat Ordinance, the court erred in deciding that the lots were Mewat classified land belonging to the State rather than Miri land belonging to the claimants.

The appellants rely on three normative sources to justify the registration of the lots in their name:

The Laws of Equity

Mandate law and case law recognize that the use and possession of land over many years creates equitable rights in it.

The Basic Laws

The Ottoman Land Code and the Mewat Mandate Ordinance must be interpreted in accordance with the constitutional principles of equality and human dignity. This justifies interpreting the land legislation that preceded the Land Law in a manner that would prevent discrimination against the Bedouin population and their continued dispossession from their historic areas of subsistence in the Negev.

International Law

As the Bedouin are an indigenous group on Negev land, the laws must be interpreted in such a way as to grant them rights under international law.

The State’s Argument

The applicant’s arguments that the Ottoman Land Code and the Mewat Mandate Ordinance should not be applied are unfounded.

– If the Ottoman legislature had perceived the Bedouin way of life as a source of acquisition of property rights, it would have explicitly prescribed it in law. Not to do so is an inadvertent omission, and the conclusion to be drawn is that the Ottoman legislator did not intend to grant rights to land by virtue of the Bedouin way of life.

In response to Appellants’ request to grant equitable tolling of the lot, the State asserts that in the absence of statutory rights, it is inappropriate to adjudicate equitable rights. The State further asserts that if and to the extent there is any substance to the assertion that the appellants’ tribe had been settled on the lots for many years, then this would have constituted an unlawful forcible seizure of the land from the authorities’ possession. Such a seizure does not confer equitable rights.

In response to the argument that internal Bedouin laws grant property right, the State argues that tribes do not have the power to grant a legal right to land where no such right would have existed in the first place.

Regarding international law, the State of Israel has not acceded to the United Nations Declaration on the Rights of Indigenous Peoples to which the appellants refer, and as such it does not constitute a binding international norm.

Discussion and Ruling:

The Supreme Court ruled that in the absence of any explicit evidence indicating the granting of autonomy in the Negev region prior to the establishment of the State, this claim must be rejected. Indeed, in such case, neither the alleged granting of autonomy nor the alleged granting of property rights can be inferred. The Court held that the 3 conditions for the land to be classified as Miri were met:

It was not owned by anyone and was not transferred to anyone by way of title.
It was not assigned for public use, nor was it assigned ab antique for the use of the inhabitants of a town or village.
It is barren and is more than one and a half miles from a town or village.

As such, the appellants’ motions are denied insofar as they relate to the validity of the 1954 expropriation of the lots under the Acquisition Act. The claimants are not entitled to compensation or replacement land. The Court rejects the plaintiffs’ arguments that relate to the rights they acquired over the lots, whether under traditional Bedouin laws, or under the Ottoman mandate and land laws, or under the laws of equity, international law and fundamental laws.