Adalah to PM Sharon: The Government's Five-Year Plan for the Arab Bedouin in the Naqab is Discriminatory and Illegal

On 4 May 2003, Adalah sent a letter to Prime Minister Ariel Sharon and Attorney General Elyakim Rubenstein challenging the legality of a government decision approved on 9 April 2003. This decision, titled "Governmental Decision Regarding the Bedouin Sector in the Negev," sets forth a NIS 1.175 billion (about US $265 million) five-year plan (2003-2007).

According to the decision, the objective of the plan is "to alter and improve the situation of the Bedouin population in the Negev, relieve its distress, arrange for the orderly recording of land in the Negev, and strengthen law enforcement." The main aspects of the plan include the setting forth of policy guidelines and government spending for: (i) contesting and settling ownership claims and land arrangements; (ii) "enforcing the state's rights to land and enforcing the planning and building laws;" (iii) completing the development and infrastructure of the existing seven towns (Rahat, Lagiyya, Kessife, Tel el-Sebe, Hura, 'Arora, and Segev Shalom); and (iv) the planning of seven new such towns.

On 11 April 2003, Ha'aretz quoted remarks about the plan made by Minister of Industry and Trade Ehud Olmert, who is also in charge of the Israel Lands Administration (ILA) and is responsible for the implementation of the government's plan:¹

We are talking about evacuating [the Bedouin] to the new seven towns that we are building for them. We will conduct contacts with them [the Bedouin], however, I assume that they will absolutely oppose [the plan]. We will not be deterred from implementing the decision, because there is no other way that we can fulfill the subject. If it [this issue] was up to an agreement, it will never be given. It is a question of the government's determination in implementing its decisions.

Adalah Attorneys Marwan Dalal and Morad El-Sana, who prepared the letter, emphasized that the government's plan does not fit the needs, suit the priorities or uphold the rights of the Palestinian Bedouin citizens of Israel living in the Naqab (Negev). Palestinian Bedouin leaders have proposed detailed alternative plans to resolve the problems faced by the 70,000 residents of the unrecognized villages, including the establishment of rural, agricultural villages to best suit the needs, rights, and lifestyle of community members. However, the Regional Planning and Building Committee in Beer el-Sebe (Beer Sheva) refused to even accept the plan for consideration.

Adalah raised five main arguments challenging the legality of the plan:

1. Conflict of Interest

The ILA is a government agency, which is led by a council comprised of both governmental representatives (50%) and representatives of the Jewish National Fund (which may also appoint a member of the Jewish Agency). The ILA manages all "state land" in Israel, amounting to over 90% of the total land area. Over the years, the state has enacted a series of laws, in an on-going process of land confiscation, to bring Arab-owned and Arab-held lands to state ownership. Thus, land use and land allocation policy is overwhelmingly under the direct control of the state.

The ILA is tasked with two major responsibilities, among others, according to the government's plan. One task, through the ILA's Authority for the Advancement of Bedouins in the Negev, is to develop the existing seven government-planned towns for the Arab Bedouin in the Naqab and to build seven new towns for this population. Another task assigned to the ILA is "to submit motions to court contesting any land ownership claims made by the Bedouins."

There is a conflict of interest between these two tasks. On the one hand, the ILA is supposedly tasked with a development function. On the other, it is charged with bringing legal challenges to all land ownership claims by the Palestinian Bedouin. One authority cannot be responsible for two conflicting duties, both development and contesting the land claims of the "subjects" of development, the Palestinian Bedouin citizens of Israel.

2. No Community Consultation

Before approving this decision, the government did not consult with the Palestinian Bedouin residents of the unrecognized villages in the Naqab, those who stand to be most affected by the plan. In fact, none of the Palestinian Bedouin community in the Naqab, numbering about 120,000 people in total, was consulted. Only after the decision had already been approved by the government was Minister Olmert quoted in Ha'aretz stating, "We will conduct contacts with them [the Bedouin]," making evident the lack of prior consultation. The failure of the government to consult with the community makes the plan illegal.

By not consulting with residents or with experts, the government seems to be adopting an old model of planning, one that was used in establishing the seven existing government-planned towns to concentrate the Arab Bedouin population in the Naqab. According to experts, this model has proven to be a failure:²

A substantial body of evidence ... indicates that the towns have failed to meet the basic needs of an urbanizing population. The towns are socially, economically and politically dysfunctional, ranking as the most disadvantaged settlements in Israel by a significant margin. Furthermore, the disparities between these towns and their immediate Jewish neighbors have bred growing frustration, alienation from the state, and animosity towards those neighbors. The consequences, such as crime and violence, discrimination and repression, are setting off alarm bells, but they are not being heard in official quarters.

3. Discriminatory Approach

According to the decision, the ILA "will act to fully implement the rule of law by enforcing the state's rights in land, including taking actions against trespassers." This approach is discriminatory for three reasons:

(a) The plan targets only so-called "illegal buildings" in the unrecognized Arab villages in the Naqab, and completely ignores this phenomenon in Jewish communities, such as on kibbutzes and moshavs, or on individual ranches in the Naqab. In his "Annual Report 50B" (2000), the State Comptroller critiques the ILA for not taking any measures against illegal buildings on ranches leased from the state by Jewish citizens of the state.

(b) The so-called "illegal building" problem in the unrecognized villages is a result of ongoing discriminatory state policies. The planning authorities have systematically excluded these villages from all local and national infrastructure development plans. A building permit may only be issued if there is a plan; as there are no plans for these villages, residents cannot obtain permits to build.

(c) While the government often engages in community consultation processes concerning property rights such as leasing agreements, land claims and compensation with Jewish residents of kibbutzes, moshavs, and individual ranches, no such approach was taken with the affected Arab communities concerning this plan.

4. Need for Legislation

According to the terms of this decision, the plan is "integrated," "comprehensive," "of great importance," and relates to the supposed development of "the Bedouin sector in the Negev" over the next five years. The plan affects a large number of people, their basic rights and their livelihoods, and concerns matters of intense social conflict between Arab citizens and the state. As such, in order to have initial legal validity, the plan must be a part of a legislative process and not a decision of the government. Further, even if such a plan was set forth in legislation, it would need to pass judicial challenge and review.

5. No Recognition of Native Land Rights

The Arab Bedouin in the Naqab have suffered from both historical and contemporary injustices. Before the establishment of the state in 1948, the Arab Bedouin in Palestine numbered approximately 60,000. During the 1948 War, Israeli forces expelled many Arab Bedouin from the Naqab, and forced others to flee; only about 9,000 remained by the end of the war. During the subsequent military regime imposed on all Palestinians in Israel (1948-1966), many of the remaining Arab Bedouin had their land confiscated, were displaced from their homes, and were re-located to other areas by the state.

Adalah suggested in the letter that the government adopt a different approach, which recognizes the historic injustice done to the native Arab Bedouin in the Naqab as well as their land rights. Such was the approach of the Australian Supreme Court in the famous case ofMabo regarding the aborigines:³

Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aboriginals, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgments of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands.

For all of these reasons, Adalah demanded the cancellation of the government's decision. Adalah asserted that the government's decision is not a development plan, but rather, a plan to concentrate the Palestinian Bedouin living in the Naqab on a minimum amount of land. This plan is discriminatory and illegal, and fails to meet the needs, suit the priorities, and uphold the rights of the community.

Notes

1. Koren Orah, "The Minister that Deals with the Sabbath, the Bedouins, and Recruiting Investment from Pension Funds from New York," Ha'aretz, 11 April 2003 (Hebrew).

2. See Harvey Lithwick, "An Urban Development Strategy for the Negev's Bedouin Community," The Center for Bedouin Studies and Development, Ben Gurion University (2000) available at http://www.bgu.ac.il/bedouin/

3. Mabo and Others v. State of Queensland, 107 A.L.R. 1, 86 (1992).