1. In Sri Lanka, land has been an important trigger in the political dynamics leading to the outbreak of armed conflict and the armed conflict itself has also significantly affected land use and land rights in the North and East regions of the country. Agricultural land use has declined, access to land has been restricted and tenure security has been uncertain in view of the delicate security situation and population movements due to displacement and return. While the ceasefire agreement has brought some relief to people in the North and East, it has also created new land related disputes due to population return and the emergence of inter-ethnic tensions in the East. The impact of the Indian Ocean Tsunami on coastal land in the North and East has produced additional land-related issues.
2. The core premise of this report is two fold: land issues in Sri Lanka cannot be seen in isolation from the ethnic and political conflict and, at the same time, even though land conflict is often linked with the ethnic conflict in Sri Lanka, a large number of land conflicts in the North and East can be resolved prior to a full and national political solution to the ethnic situation. This report therefore:
analyzes constraints and opportunities for an effective governance framework for land access and land tenure security in the conflict-affected areas of Sri Lanka,
develops a comprehensive typology of land-related conflicts to inform policy dialogue and to identify types of conflict that may be resolvable in the current situation and to distinguish them from those which are not,
identifies policy criteria to further ensure a conflict-sensitive approach in a post-conflict and post-tsunami context whereby regional, religious and ethnic balances in the allocation and/or restitution of land and property rights are to be addressed.
The report synthesizes existing studies, mainly qualitative assessments of limited scope and outreach, but a more in-depth quantitative assessment may be conducted later on, when the political situation is conducive to do so.
3. In the present (semi-) post-conflict situation, the different ethnic communities living in the North and East have developed ethnicity-specific interpretations of the historical process and the current status of land tenure security, land access and the policy framework. These different perceptions are expressions of accumulated grievances of inter-ethnic antagonisms and deep-lying searches for improved livelihoods. Although these grievances are now mostly expressed in ethnic dimensions, the underlying causes for such disputes are often rooted in structural causes not necessarily related to the ethnic question, such as increasing pressures on scarce resources and limited economic life opportunities. The armed conflict, however, has changed the dynamics and the political environment within which such land issues are to be resolved. Some of the Government’s land use policies have been considered to be a trigger to create these ethnicized interpretations of land-related issues.
4. Furthermore, the impacts of the civil war on land use have resulted in a dramatic decline in the extent of agricultural land currently utilized. The Agricultural census estimates that the acreage of utilized agricultural land has diminished by more than 25% from 1982 to 2002, while it has increased in the not war-affected North Central Province by 30% in the same time period. This dramatic decrease in land use is largely due to population displacement, restricted (physical) access to land (due to insecurity), political instability and shrinking economic opportunities. A general level of insecurity has often decreased tenure security and restricted land access.
5. The signing of the ceasefire agreement (CFA) in February 2002 has created prospects for reconstruction and development in the North and East. The CFA provided freedom of movements and offered opportunities for displaced persons and absentee landlords to return to their places and properties. A number of land-related issues have arisen in this highly dynamic environment: On the one hand, returnees often find their properties occupied by secondary occupants. At the same time, some dormant land disputes that had been suppressed during the times of armed confrontation now emerge to the open. Many of these disputes have their roots in structural, long-term issues (e.g. land scarcity in densely populated areas), but have become politicized and reinterpreted in ethnic terms. If the latter cannot be contained, they may contribute to a destabilization of inter-ethnic areas, in particular in the East.
6. This report provides a detailed analysis of different types of land-related issues in the North and East after the ceasefire agreement (Table 4; Annex 1). It distinguishes three types or levels of land issues. On each of the three levels, the analysis distinguishes between land tenure security (property rights, security of rights, transactions, documentation etc.), land access (informal access to land-related livelihoods) and governance issues (legislation, law enforcement, land management):
Level 1 - inter-individual, intra-ethnic land disputes and property issues (individual-individual, individual-state) – no inter-ethnic dimension involved: Land tenure issues include unlawful secondary occupancy of property and land, disputed titles (esp. false deeds), boundary disputes, loss or destruction of title documents, unclear property rights to temple lands. Access problems are prevalent in particular in heavily mined areas, but also relates to the problem of landless returnees.
Level 2 - inter-communal or inter-individual, inter-ethnic land disputes or property rights issues (individual-individual, individual-communal, communal-communal): Land tenure and property rights issues include inter-ethnic disputes over water allocation and land access in irrigation schemes, competing land uses, fishing rights and land transfers done during times of distress. Access problems relate to the inaccessibility of agricultural land due to persistent insecurity.
Level 3 - inter-individual or inter-communal land or property rights issues, where the inter-ethnic dimension has become dominant and the issue highly politicized: These land issues are subject to political negotiations between the parties to the conflict. They include land tenure and land access problems relating to high security zones or militarily occupied territories and issues of devolution of powers between centre and provinces.
10. The Indian Ocean Tsunami has further added to land-related problems in the conflict-affected areas of the North and East. The tsunami has displaced more than 500,000 people adding to the already large number of conflict-affected displaced persons. The originally proposed buffer zone policy of the Sri Lankan government has created confusion about the property status of land situated within the buffer zone. Table 7 specifies the land-related issues pertinent in the post-tsunami recovery process. Particularly important are issues relating to loss of title documents during the tsunami (incl. the state’s back-up copies in the registries), and the uncertainties relating to relocation from the buffer zone, including shifting land values and prices.
11. Following the analysis in the report, six major trajectories are identified that define opportunities and constraints for effectively governing land-related issues in the North and East:
Current and emerging land disputes need to be understood in the context of the history of past land policies and the perceptions of ethnic biases that have developed out of these.
The armed conflict has further aggravated the pressure on land and has increased ethnic grievances related to land use.
Although ethnic tensions appear in relation to land disputes, competing access to land is often rooted in deeper lying structural causes, such as scarce resources, decreasing economic opportunities etc.
There is some evidence to suggest that some past policies and the impacts of armed conflict have transformed the governance frame for land access and land tenure in the North and East, which has tended to encourage ethnic favoritism on local and regional scales.
In more operational terms, key aspects of tenure security include the recognition and recording of land-related rights.
The government’s buffer zone policy after the tsunami has increased uncertainty over land tenure security in the affected areas.
12. This report does not provide blue print solutions, but rather aims at contributing to the overall debate distinguishing issues that are possible to address through administrative and operational decisions from those which are ethnically and/or politically sensitive and will be part of negotiations between the conflict parties in the peace process. These policy issues include:
Land tenure security: there is a need for an effective land administration system that responds to the particular context of a conflict and reconstruction situation. It is imperative for the state to provide public guarantee of tenure security by establishing, among others, alternative means for effective conflict resolution at the local level (e.g. inter-communal mechanisms). Fully equipped and capable land-related institutions should be put in place, in order to effectively enforce property and land use rights. These are required at the national and local levels and within and outside the governmental machinery.
Land access: The particular Sri Lankan conflict context calls for differentiated and innovative approaches to guarantee access to land, in particular for the most vulnerable population, taking the ethnic balance should be a primary criteria. Issues related to access include addressing (and further preventing) conflicts arising from displacement and returnees, land mines, female headed households (usually widows), and biased state-driven land allocation processes. Unambiguous policy framework for state land distribution, land allocation to returnees, tsunami affected and displaced population, and overall access to land is essential.
The overriding principle for dispute resolution should be subsidiarity, i.e. disputes should be solved on the lowest institutional level possible. There is also a need for fast-track mechanisms that could, for example, deal with minor land disputes surrounding residential land, boundary disputes etc. (Level 1) and for making use of inter-communal dispute resolution mechanisms in minor inter-ethnic land disputes (Level 2) (see Annex 2, table 8 for details).
Governance is a cross-cutting issue for land tenure security and land access. A number of legal reforms are currently discussed to make land rights and land use policies more effective. These reforms in policy need to trickle down to the practice of land administration, especially with regard to land allocation and land rights. As part of good governance, limiting discretionary bureaucratic behavior is a must. Bureaucratic practices need to become inclusive, transparent, accountable, participatory and consultative as well as locality-specific, criteria-based and comprehensive. Such good governance practices are instrumental in re-establishing the credibility of land administration.