ABSTRACT
In brief, this article evaluates the legal regulations and developments regarding the protection and relocation of olive groves, as well as the adequacy of the existing framework in this context, and discusses its effects on the jurisdiction and administration.
I. INTRODUCTION
It has been revealed that the history of olives dates back to 12 thousand years, in the light of the studies that indicate the fossils found at that time were wild olive branches1. However, although the homeland of the olive is known as South Asia, it has maintained its presence in history by being of great importance for many civilizations and geographies throughout history. Due to this importance, olives, olive oil and olive grove assets have been seen as a resource from history to present, and various studies have been carried out for their protection and development. The most significant of these endeavors is to legalize olive groves and provide a strong foundation for their protection. The concern to protect olives, olive oil and olive groves in our geography dates back to the Ottoman Empire. The Ottoman Empire included olive production among the productions for which tax reductions and investment incentives were provided, and in certain periods, olives and olive oil were included in the list of prohibited exports established by the decision of the Imperial Council2. The legal protection and regulations in this direction have continued until today, and although certain conflicts and disputes have occurred, the regulations on the subject have continued to exist in law and legislation. Nowadays, the most controversial issues regarding the protection of olive groves are the relocation of olive groves and industrial operations, especially mining activities, near olive groves. As will be explained below, although regulations on the protection of olive groves continue to exist in the legislation, it is inevitable that the lack of an adequate and robust legal framework leads to uncertainties and divisions in judicial decisions. At this point, the integrity of legislation and court rulings, as well as the control of grove relocation and permissible activities close to clearly defined boundaries, are directly tied to the preservation of olive groves, olive production, and the observance of legal interests. This relationship will be analyzed from different perspectives, including the existence of olive groves in the legislation, the change of the legislation, and the effects on the judiciary and the administration due to legal deficiencies in the protection and relocation of olive groves.
II. THE EXISTENCE AND EVOLUTION OF OLIVE GROVES IN THE LEGISLATION
A. Enactment and Amendments to the Olive Code
The desire for legal protection for olive cultivation and olive groves has been seen as an important issue since the early years of the Republic of Türkiye. The first legal step was taken in 1927 with the enactment of the “Draft of the Olive Groves Code”. Currently, the olive tree is under legal protection in Turkey with the Law No. 3573 on the Improvement of Olive Groves and Grafting of Wild Olives3 (“Olive Code”)4. The Olive Code is the only law in Turkey and in the world to protect a tree5.
The Olive Code entered into force in 1939 and was amended in 1995 and 2008. From 2002 to 2021, seven legislative proposals were submitted to amend the Olive Law, but none were adopted due to public pressure6.
Although the articles of the Olive Code other than Articles 14, 17 and 20 are not applicable in practice, they are important. Article 14 was included in both the 1995 and 2008 amendments to the Olive Code. In the 1995 amendment, the prohibition on the construction of corrals in olive groves was revised to be at least 1 kilometer away from olive groves, thus expanding the protection of olive groves from animals. In 2008, imprisonment was added to the judicial fine provision, aiming for a more deterrent framework for the protection of olive groves.
The current version of Article 14 is as follows:
“Article 14 - (Amended: 28/2/1995-4086/3 Art.)7
Except in residential areas, it is illegal to build sheep and goat pens at least one kilometer away from olive groves and to bring any kind of animal into them.
However, animals used for ploughing and transportation are permitted, provided that they are muzzled. (Amended third paragraph: 23/1/2008-5728/97 Art.) (Amended third paragraph: 23/1/2008- 5728/97 Art.)
Those who violate this provision shall be sentenced to imprisonment up to three months or a judicial fine upon the complaint of the injured party.
Minutes issued by those who are obliged to protect farmers’ property shall be valid until proven otherwise”.
Article 17 has been amended to make the regulations more comprehensive. This article aims to improve olive cultivation, identify new olive planting areas, encourage the planting and cultivation of olives, increase yields, combat diseases and pests, and provide the necessary facilities in the manufacture and importation of tools and equipment to reduce costs in obtaining products8. In addition, steps were taken to establish unions to combat olive diseases and pests9. This amendment stipulates that the establishment of unions will be regulated by a regulation that is to be prepared by the Ministry of Agriculture and Forestry10 and that producers who do not take care of their olive groves in accordance with the rules in the regulation will be subject to an administrative fine of ten Turkish Liras per tree.
The current version of Article 17 is as follows:
“Article 17 - (Amended: 28/2/1995-4086/4 Art.)11
The State shall provide the necessary facilities for the improvement of olive cultivation, the determination of new olive planting areas, the encouragement of olive planting and cultivation, the increase of yield, the fight against diseases and pests, and the manufacture and importation of tools and equipment to reduce costs in obtaining products.
In the provinces or districts of olive grove regions, unions shall be established in accordance with the provisions of Code No. 1580 for the purpose of combating olive diseases and pests. In the struggle against pests, the State shall provide the necessary tools, equipment and financial resources to the unions and sufficient personnel shall be assigned by the Ministry of Agriculture and Rural Affairs12. After the product is obtained, the producer shall pay the control costs corresponding to the share to be determined by the union. This share shall be collected by the union from the producer who fails to pay in accordance with the procedures and principles regarding the collection of public receivables.
(Amended third paragraph: 23/1/2008- 5728/98 Art.) The establishment and working principles of the unions to be established in accordance with the above paragraph and the maintenance of olive groves shall be determined by a regulation to be prepared by the Ministry of Agriculture and Rural Affairs within three months. Producers who do not take care of their olive groves according to these rules to be determined shall be imposed an administrative fine of ten Turkish Liras per tree.”
Article 20 of the Olive Code, which is the most important and most frequently raised in practice, has been the subject of further debate with the amendments it underwent in 1995 and 2008. The current version of Article 20 is as follows:
“Article 20 - (Amended: 28/2/1995-4086/5 Art.)13
Within the olive grove areas and at least 3 kilometers away from these areas, except for olive oil factories, no facility that emits chemical wastes, dust and smoke that will prevent the vegetative and generative development of olive groves may be built and operated. The construction and operation of olive oil factories and small-scale agricultural industrial enterprises in these areas shall be subject to the permission of the Ministry of Agriculture and Rural Affairs.
(Amended second paragraph: 23/1/2008- 5728/99 Art.) Olive groves cannot be reduced. However, in the event that olive grove areas within municipal boundaries are included within the scope of zoning boundaries, total construction including infrastructure and social facilities may not exceed 10% of the olive grove area.
The removal of olive trees in these areas is subject to the permission of the Ministry of Agriculture and Rural Affairs based on scientific grounds. In granting this permission, the appropriate opinion of the research institutes affiliated to the Ministry of Agriculture and Rural Affairs and the local agricultural chamber, if any, shall be taken. Even in this case, olive trees may not be cut or uprooted unless absolutely necessary. Those who cut or remove olive trees without permission shall be imposed an administrative fine of sixty Turkish Liras per tree.
The zoning plans finalized for olive grove areas before the publication of this Law are valid.”
While in the previous version of the article, only the construction of oil mills and factories in olive groves required the permission of the Ministry, the 1995 amendment increased the scope of protection and prohibited the construction and operation of facilities that emit chemical wastes, dust and smoke that would prevent the vegetative and generative development of olive groves at least 3 kilometers from olive groves14. The 2008 amendment stated that the overall development, including social and infrastructural facilities, could not exceed 10% of the total construction, unless olive trees inside municipal boundaries were included within the zoning boundaries. Finally, the provision that the uprooting of olive trees is subject to the permission of the Ministry based on scientific grounds and that an administrative fine per tree will be imposed in case of unauthorized cutting or uprooting of olive trees is intended to strengthen the scope and deterrent feature of the protection.
B. Regulation on the Breeding and Grafting of Olive Groves
Within the legal framework of olive groves, the Regulation on the Breeding of Olive Groves and Grafting of Wild Olive Groves15 (“Regulation”), which is regulated pursuant to Article 17 of the Olive Code as explained above, is of particular importance. As stated in Article 1, the Regulation aims to “...ensure the establishment of olive groves in ecologically suitable regions and areas suitable for olive cultivation, to increase the quantity and quality of the product in existing olive groves, to reduce costs, to increase the yield per unit area, to provide the necessary technical, economic, commercial and social measures and organizations in order to adapt the technological structure of olive oil and table olive enterprises to the current conditions...”.
In 2012, Article 23 of the Regulation was amended and the definition of olive grove area was added to Article 4 on Definitions. With this amendment, the definition of olive grove area and exceptions regarding olive trees were regulated for the first time and added to the legislation.
In this respect, although the Olive Code does not allow the narrowing of olive grove areas, cutting and/ or uprooting of olive trees, the scope of the term olive grove is not clearly regulated under the law. In this regard, the Regulation stipulates that the prohibition in question will only apply to the parts defined as “olive grove areas” under the Olive Groves Regulation. Accordingly, Article 4 of the Regulation, titled “Definitions”, defines “Olive Grove Area” as “an area of at least 25 decares, consisting of wild olive groves, pistachio and carob groves and all kinds of mastic varieties or areas registered as such in the title deed, which are outside the borders of forests and are under the control and disposal of the State, and maquis and heathlands suitable for olive cultivation, which are outside the borders of forests but are not covered by the Code on Supporting the Development of Forest Villagers dated 17/10/1983 and numbered 2924”. Due to this definition, areas of less than 25 decares are no longer considered as olive groves and the scope of legal protection of olive groves has become weaker and more limited.
Article 23 of the Regulation reads, “No facilities that emit chemical wastes, dust and smoke that may prevent the vegetative growth and reproduction of olive trees may be built and operated within olive grove areas and at least three kilometers away from these areas. The construction and operation of olive oil factories and small-scale agricultural enterprises in these areas depends on the permission of the Ministry of Food, Agriculture and Livestock. However; if there is no alternative area, if it is in compliance with the Environmental Impact Assessment Report (EIA), and if it is determined by the Ministry’s research institutes or universities that it will not harm the vegetative and generative development of plants as follows:
a) Geothermal-based technological greenhouse investments,
b) Plans and investments for which a public benefit decision has been taken by the Ministries (Amended phrase: OG-12/4/2012- 28262),
c) Electricity generation facilities based on renewable energy sources,
ç) Mining activities, petroleum and natural gas exploration and operation activities for which a public benefit decision has been taken by the relevant Ministry (Amended phrase: OG-12/4/2012-28262),
d) For strategic needs for defense, those who wish to engage in the above-mentioned activities apply to the highest local authority with documents approved by the relevant Ministries. The applicant shall establish an olive orchard in the area to be deemed appropriate by the provincial/district directorate of equivalent size in accordance with the planting norms and on the condition of taking measures to prevent the damages determined by the EIA report that may occur in the environment.”
The regulation in question was subject to an annulment lawsuit and as a result of the trial, the 8th Chamber of the Council of State, with its decision16 dated 19.02.2015, annulled the entire definition of “Olive Grove Area” in Article 4 of the Regulation, as well as the remaining part of Article 23, except for the sentence “No facility that emits chemical wastes, dust and smoke that will prevent the vegetative growth and reproduction of olive trees within olive grove areas and at least three kilometers from these areas may be built and operated.”.
C. Amendment to the Mining Regulation on the Relocation of Olive Trees
In addition to the aforementioned legislation regarding olive cultivation activities, Article 115 of the Mining Regulation17 published in the Official Gazette dated 21.09.2017 and numbered 30187 by the Republic of Turkey Ministry of Energy and Natural Resources was amended by the Regulation Amending the Mining Regulation18 (“Amendment Regulation”) published in the Official Gazette dated 01/03/2022 and numbered 31765 in order to enable industrial activities to be carried out in olive grove areas.
The following paragraph has been added to Article 115 of the relevant Mining Regulation.
“In the event that the mining activities carried out to meet the electricity needs of the country coincide with the areas registered as olive groves in the title deed and it is not possible to carry out the activities in other areas, the Ministry may be permitted, taking into account the public interest, to move the part of the olive site where the mining activity will be carried out, to carry out mining activities in the site and to build temporary facilities related to these activities within the work schedule determined by the General Directorate, provided that the person who will carry out the mining activity undertakes to rehabilitate and restore the site at the end of the activities. In cases where it is not possible to relocate the olive field, in order to be permitted by the Ministry to carry out mining activities on the site and to construct temporary facilities related to these activities, taking into account the public interest, the person who will carry out mining activities must undertake to rehabilitate and restore the site at the end of the mining activities and to establish an olive orchard in accordance with the planting norms in the area to be deemed appropriate by the Ministry of Agriculture and Forestry, which is equivalent in size to the site where the activity will be carried out. Within the scope of this paragraph, the person in whose favor the decision is taken to carry out mining activities is responsible for all costs related to the relocation of the olive field and all claims arising from the relocation of the olive field. The procedures and principles regarding the relocation of the olive field within the scope of this paragraph shall be determined by the Ministry with the approval of the Ministry of Agriculture and Forestry, and the procedures and principles regarding the establishment of olive groves shall be determined by the Ministry of Agriculture and Forestry.”
In this respect, with the provision added to the Mining Regulation by the Amendment Regulation, it has been made possible to carry out industrial activities in olive grove areas on the condition that the site is rehabilitated following the end of the activity and that the olive trees uprooted from the site are committed to be planted in the place to be shown by the Ministry.
However, in the period following its publication in the Official Gazette, the Amendment Regulation, like the Regulation, was the subject of an annulment lawsuit and accordingly, the 8th Chamber of the Council of State suspended the execution of the Amendment Regulation. Subsequently, the Mining Regulation was completely amended with the amendment published in the Official Gazette dated 11.12.2022 and numbered 32040, and the new regulation did not include any new provision in line with the provision subject to the annulment lawsuit.
III. THE EFFECTS OF LEGAL DEFICIENCIES IN THE PROTECTION AND RELOCATION OF OLIVE GROVES ON THE JUDICIARY AND THE ADMINISTRATION
As a result of the legislative uncertainty caused by the annulment by the Council of State of the definition of the olive grove area and the exceptions regarding the relocation of olive trees, which were added to the legislation by the Regulation mentioned in the previous section, different decisions have been made by the courts on the subject.
In the decisions of the 1st Civil Chamber of the Court of Cassation on the subject;
In a 2018 decision19, “It is clear that the provisions of the Code No. 3573 on the Reclamation of Olive Groves and Grafting of Wild Olives” cannot be applied in the concrete case since the immovable property numbered 204 parcel of land subject to the dispute is a field according to the title deed record.”
In a 2017 decision20, “The removal of olive trees is subject to certain procedures and principles in accordance with the Code No. 3573 on the Reclamation of Olive Groves and Grafting of Wild Olive Trees. However, the immovable subject to the dispute does not qualify as an olive grove and there is no legal possibility to apply the aforementioned law here.”
In another 2007 decision21, it was stated that “The provision mentioned in Article 20 of Code No. 3573, as amended by Article 5 of Code No. 4086, regarding the olive grove areas that cannot be reduced and that the removal of olive trees is subject to permission, is related to the places that are determined and declared as olive grove areas in accordance with Article 2 of the same law (Code No. 3573).”
On the other hand, in the decisions of the 8th Civil Chamber of the Court of Cassation on the subject;
In a decision rendered in 201922, “Although the court, with the acceptance of the lawsuit, decided to ban the intervention as well as to remove the olive trees planted by the defendants on the 97 parcel, as it is known, it is necessary to make an evaluation within the framework of Article 20 of the Code No. 3573 on the Breeding of Olive Groves and Grafting of Wild Olives, which was amended by Article 99 of the Code No. 5728 dated 23. Article 20 of the Code No. 3573 on the Breeding of Olive Groves and Grafting of Wild Ones, which was amended by Article 99 of the Code No. 5728 dated 1.1.2008 and dated 23.1.2008, and then a decision should be made on the stay request, it was not deemed correct to rule for the stay of the olive trees by ignoring this issue.”
In a 2020 decision23, the court ruled that “It was not deemed correct to rule for the removal of olive trees by ignoring this issue, while an evaluation should be made within the framework of the provision of Article 20 of the Code No. 3573 on the Breeding of Olive Groves and Grafting of Wild Olive Trees, which was amended by Article 99 of the Code No. 5728 dated 23.1.2008, regarding the request for the removal of olive trees, and then a decision should be made on the removal request.” In addition to the decisions of the civil courts, there are also decisions of the administrative courts on the subject. Accordingly, in many decisions24 rendered by the 3rd and 6th Chambers of the Council of State, “In the case under consideration, it has been observed that there is no clear information and document in the case file regarding whether an olive grove area determination has been made in accordance with the provisions of the Code No. 3573 on the Breeding of Olive Groves and Grafting of Wild Olive Groves regarding the immovables subject to the dispute. In this case, it is necessary to make a new decision after a committee of experts, including an agricultural engineer, is formed and a discovery and expert examination is made at the site of the immovable property and it is clarified whether the parcel in dispute is an olive grove, and if it is understood that it is an olive grove, it is necessary to make a new decision after it is revealed whether the usage decision and construction conditions brought for the parcels in dispute with the zoning plans subject to the lawsuit are in accordance with the above-mentioned provision of the Law.”, emphasizing that the determination of whether the relevant Law applies in an area should be made by experts.
As explained in Chapter II, although there are regulations regarding the cutting and/ or uprooting of olive trees within the scope of the relevant legislation, there is no legal regulation regarding the relocation of olive trees to different locations under the supervision of the relevant administrations. As a matter of fact, there are examples where the relevant administrations have given opinions and/or permissions to relocate olive trees from their current location to other locations if the circumstances so require and in cases where there is no olive grove annotation on the title deed page of the parcel, as given in the precedents below.
In a letter dated 29.01.2020 issued by the Adana Provincial Directorate of Agriculture and Forestry of the Ministry of Environment, Urbanization and Climate Change of the Republic of Turkey; “(...) For the part of the site planned as an Individual Investment Site within the scope of Law No. 3573, there is no problem in the continuation of the EIA process of the site planned as an Individual Investment Site, provided that the olive groves are moved to another area of equal size to the 60 ha olive grove area under the control of our Directorate before the activity starts by the investor company. ”
In the report attached to an opinion letter dated 27.12.2022 issued by the Agricultural Infrastructure and Land Evaluation Branch Directorate of the Republic of Turkey Adana Provincial Directorate of Agriculture and Forestry, it was stated that “in case a public benefit decision is taken regarding the declaration of a Special Industrial Zone of approximately 60 hectares in size, it is deemed appropriate by the Branch Directorate to move the olive trees to another area of equal size within the framework of Article 20 of the Law, and it is decided that it would be appropriate to move the olive trees in question to another area of equal size under the control of the Provincial Forestry Directorate before the activity is started by the company. ”
In addition to the opinions where the relevant administrations allow the relocation of olive trees from one location to another if the conditions are met, there are also precedents where the relevant administrations have au - thorized the aforementioned process and this process has actually been carried out. In fact, although there are olive trees on the land where the Ceyhan Energy Specialized Industrial Zone established in Ceyhan district of Adana province is located, considering that there is no olive grove registration on the title deed pages of the relevant parcels; Article 20 of the Code No. 3573 states that In accordance with the phrase “Olive groves cannot be reduced” regulated in Article 20 of Code No. 3573, it was deemed appropriate to move the olive groves to another area of equal size to the olive grove area under the control of the Provincial Forestry Directorate before the start of the Ceyhan Energy Specialized Industrial Zone activity and it was stated that there is no objection to the zoning plan for non-agricultural use (industry, storage, etc.) within the Ceyhan Energy Specialized Industrial Zone.
IV. CONCLUSION
As a result, although the law for the protection of olives, which is the only one of its kind in the world as described above, has been enacted in our country, it has not been established on a solid framework. Although the amendments to the law and the regulations issued pursuant to them are not sufficient to draw a clear framework, there is a legal gap especially in the scope of the relocation of olive groves. The fact that it is such an important issue for our country and the lack of success in establishing a legal framework, has made it necessary to carry out legal studies that allow for adequate and quick solutions in this regard. Furthermore, considering that the lack of a clear regulation under other legislations regarding the relocation of olive trees has caused the relevant administrations to make different dispositions on this issue on different dates, and that this situation has manifested itself in a way that prejudices the principle of “integrity of administration” prevailing in Administrative Law, it is clear that it is necessary to amend the legislation on the subject and to create a fiction that includes clear regulations on the relocation of olive trees in a way that does not contradict the purpose of the law.
BIBLIOGRAPHY
ARTUN ÜNSAL, Ölmez Ağacın Peşinde-Türkiye’de Zeytin ve Zeytinyağı, 8th Edition, Istanbul, 2011.
AZİZ ORHAN ÇİMEN, “Zeytin Hukuku”, 2021. https://www. tarimhukuku.org/zeytin-hukuku-aziz-orhan-cimen/ (Date Of Access, 04.01.2024).
Danıştay 3. D., T. 24.05.2022, E. 2019/4478, K. 2022/2396.
Danıştay 6. D., T. 28.03.2022, E. 2019/1852 K. 2022/3682.
Danıştay, 8. D., T. 19.2.2015, E. 2012/6113, K. 2015/998.
FİLİZ ÇOLAK, “Osmanlı Devleti’nin Son Yıllarında Anadolu’da Zeytin ve Zeytinyağı Üretim ve İhracatı (1908-1922)” Akademik Tarih ve Düşünce Dergisi, N. 2, 2021.
PROF. DR. MUSTAFA TOPALOĞLU, “Madencilik Sektörü Açısın - dan Zeytinliklerle İlgili Hukuki Gelişmeler”, 2022. https://www. mtopaloglu.av.tr/img/makaleler/madencilik-sektoru-acisindanzeytinliklerle-ilgili-hukuki-gelismeler-173.pdf (Date of access, 04.01.2024).
Yargıtay 1. HD., T. 05.02.2018, E. 2018/375, K. 2018/772.
Yargıtay 1. HD., T. 15.11.2017, E. 2017/4577, K. 2017/6452.
Yargıtay 1. HD., T. 17.05.2007, E. 2007/4551, K. 2007/5597.
Yargıtay 8. HD., T. 07.09.2020, E. 2018/5671, K. 2020/4863.
FOOTNOTE
1 Artun Ünsal, Ölmez Ağacın Peşinde-Türkiye’de Zeytin ve Zeytinyağı, 8. Baskı, İstanbul, 2011, p. 13. 2 Filiz Çolak, “Osmanlı Devleti’nin Son Yıllarında Anadolu’da Zeytin ve Zeytinyağı Üretim ve İhracatı (1908- 1922)” Akademik Tarih ve Düşünce Dergisi, S.
2, Haziran 2021, p. 627-650.
3 Law No. 3573 on the Improvement of Olive Groves and Grafting of Wild Olives, which entered into force after being published in the Official Gazette dated 7/02/1939 and numbered 4126 .
4 Aziz Orhan Çimen, “Zeytin Hukuku”, 2021.
5 Çimen, “Zeytin Hukuku”, 2021.
6 Mustafa Topaloğlu, “Madencilik Sektörü Açısından Zeytinliklerle İlgili Hukuki Gelişmeler”, 2022.
7 Law on the Breeding and Grafting of Olive Groves Art. 14.
8 Çimen, “Zeytin Hukuku”, 2021.
9 Çimen, “Zeytin Hukuku”, 2021.
10 The Ministry of Agriculture and Rural Affairs has been referred to as the Ministry of Agriculture and Forestry since 10.07.2018. It will be referred to as “Ministry” for short.
11 Law on the Breeding and Grafting of Olive Groves Art. 17.
12 The Ministry of Agriculture and Rural Affairs has been referred to as the Ministry of Agriculture and Forestry since 10.07.2018.
13 Law on the Breeding and Grafting of Olive Groves Art. 20.
14 Çimen, “Zeytin Hukuku”, 2021.
15 Regulation on the Breeding and Grafting of Olive Groves, Official Gazette dated 03/04/1996 and numbered 22600.
16 Danıştay, 8. D., T. 19.2.2015, E. 2012/6113, K. 2015/998.
17 Mining Regulation, Official Gazette dated 21.09.2017 and numbered 30187.
18 Regulation Amending the Mining Regulation, Official Gazette dated 01.03.2022 and numbered 31765.
19 Yargıtay 1. HD., T. 05.02.2018, E. 2018/375, K. 2018/772.
20 Yargıtay 1. HD., T. 15.11.2017, E. 2017/4577, K. 2017/6452.
21 Yargıtay 1. HD., T. 17.05.2007, E. 2007/4551, K. 2007/5597.
22 Yargıtay 8. HD., T. 02.12.2019, E. 2018/10215, K. 2019/10793.
23 Yargıtay 8. HD., T. 07.09.2020, E. 2018/5671, K. 2020/4863.
24 Danıştay 3. D., T. 24.05.2022, E. 2019/4478, K. 2022/2396. - Danıştay 6. D., T. 28.03.2022, E. 2019/1852 K. 2022/3682.
