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 uncertain in view of the delicate 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 high percentage of the population living in rural areas combined with the high dependence on agricultural production puts high pressure on land resources and further reduces land availability. Due to the current situation of post-conflict transition and post-tsunami recovery, a careful analysis is required to ensure that land-related issues do not interfere with the prospects for social and economic recovery and peace building.
2. Experiences from other conflict-affected countries, such as Uganda, Mozambique, East Timor, and South Africa have demonstrated that the relationship between land and conflict is complex and multidimensional (USAID, 2004), and that usually it needs to be addressed sooner rather than later. Land combines strong economic, cultural, social and emotional values in society and constitutes both an essential source of livelihood in rural areas characterized by a scarcity of productive assets, but also more generally a central element in entangled, varied and complex social relations within which conflict between individuals and groups are bred. Although land issues are often rooted in conflict situations, it is quite difficult to establish the precise role that land plays in the outbreak of conflict (OECD, 2004). However, as conflict deepens and turns violent, territorial control and land grabbing are frequently used as the most effective war strategy or conversely, conflict and war are used to gain access to resources, including land. In post-conflict transition, countries face a number of land-related challenges associated with post-conflict reconstruction and peace consolidation, which often are extremely difficult to address successfully. The importance of land and property issues to post-conflict development is often not recognized early in the process, even though they are intrinsically linked to the political economy, livelihood strategies, vulnerability and socioeconomic development.
Land issues in post-conflict and post-tsunami Sri Lanka
3. In Sri Lanka, competing control over land has been intimately linked with the history of agricultural development, especially in the colonization areas of the East (Moore 1989; Peebles 1990) and has been an important trigger for inter-ethnic violence. Territorial control, spatial distribution of ethnic groups and access to land and distribution of government welfare have become contentious political issues. At the same time, it is believed that the armed conflict has significantly affected land access for agricultural and residential purposes, especially due to access restrictions imposed by the conflict parties, insecure and unclear property and use rights due to population displacement and high mobility as well as inefficient or ethnically biased implementation of land-related laws and regulations. There are enough elements to believe that without a sustainable, fair, and grounded solution of the land and property rights question in the North-East, tensions could not only increase but prevent a sustainable peace and reconstruction process.
4. Since land disputes are often related to the broader ethnic conflict, very little is done to address these in fear of triggering inter-ethnic tensions and grievances further. However, although the ethnic conflict and armed confrontation have aggravated land tenure insecurity and land access problems, not all of these originate from the armed conflict alone. Many are rooted in structural issues, such as increasing land scarcity due to population pressures and decreasing economic returns from land use, as well as weak and/or politicized governance structures relating to land use issues. The challenge of post-conflict reconstruction and development lies therefore in addressing these structural factors, in improving the related governance framework in the North and East and in avoiding land disputes to become enmeshed with broader political dynamics of ethnicized grievances.
5. This report suggests that one cannot wait with addressing land conflicts in the North and East, until a formal settlement of the ethnic conflict is accomplished. Land issues affect many development and reconstruction efforts after the ceasefire agreement and in the current post-tsunami recovery process. Therefore, this report analyses what kind of land conflicts have emerged in the North and East and how they are linked with the broader ethnic conflict (or not). It suggests which types of conflict may be addressed immediately in order to sustain development and reconstruction efforts and how this may best be undertaken. The report also delineates those issues which may be too sensitive to be tackled before a broader political settlement has been reached.
6. The effects of the Tsunami of 26 December 2004 have added further land-related problems. First of all, it has washed away lands in already land-scarce areas and displaced more than 400.000 people leaving more than 100,000 homeless/landless. Secondly, the majority of the victims often also lost proof of ownership or land use rights both in the books and on the ground (e.g. most land markers and boundaries are totally or partially destroyed). Finally, right after the tsunami, as part of its recovery and rehabilitation strategy, the Sri Lankan government has announced and made legal notification of its intention to enforce a setback area. As a result, people formerly living in these areas will be relocated to areas outside the setback area.
Objectives, Scope and Audience
7. This report analyzes constraints and opportunities for an effective governance framework for land access and land tenure security in the conflict-affected areas (CAAs) – many of which are also tsunami affected. In particular, it aims at deepening the understanding of the relationships between the current land tenure system, existing land policy and (semi-)post-conflict and post-tsunami reconstruction and development programs.
8. The scope of the analysis entails a mapping of all issues pertaining to land rights, land access and land policy in the CAAs, such as land tenure security, restitution of property rights, access to land for vulnerable groups and the practical implementation of land allocation policies. In this context, the study
looks into private land and state land alienated for private use rights with a focus on rural areas and covers urban CCAs affected by the Tsunami, where appropriate.
develops a comprehensive typology of land-related conflicts to inform policy dialogue and to provide the foundation for a more in-depth assessment later on.
identifies policy criteria to further ensure a conflict-sensitive approach in a post conflict and a post-tsunami context whereby regional, religious and ethnic balances in the allocation and /or restitution of land and property rights need to be adequately and promptly addressed to ensure a peaceful and equitable reconstruction and development process.
9. Methodology. The policy note synthesizes existing studies to derive a typology of land-related issues and their best-suited resolution mechanisms. The typology allows to map out policy issues and interventions relevant for (semi-) post-conflict and post-tsunami reconstruction efforts and to suggest new sets of research questions which could form the basis of a more in-depth quantitative analysis in the future.
Data sources. Due to the conflict situation, quantitative data is largely out of date, government statistics often rely on crude estimations. Thus far, no comprehensive household survey has been conducted and the agricultural census conducted in 2002 was not comprehensive for the whole North and East. In view of these data limitations, this report works with the following qualitative studies conducted in the last five years: the Centre for Policy Alternatives (CPA) has conducted various studies on land issues after the ceasefire agreement, with a particular focus on gender issues (CPA 2003, 2005a, 2005b, 2005c). The Northeast Housing Reconstruction Programme (NEHRP) has investigated land issues relating to housing (NEHRP 2004a, 200ab). UNHCR Sri Lanka has conducted a study on land and property issues relating to the return of internally displaced persons and refugees living abroad, with an update after the Tsunami (UNHCR 2003, 2005). The Foundation for Co-existence (FCE) has been involved in restitution of Muslim land rights in the East and has conducted various studies in this regard (Rupesinghe 2002, FCE 2003, Hasbullah et al. 2005). Although these reports have compiled a large amount of information, they cannot yet claim a complete representation of the situation in the North and East; however, the state of information collection is sufficient to develop a typology of land-related issues and to identify some policy recommendations.
10. Audience. The report comes at a critical juncture, since the major players in the Sri Lankan conflict are currently seeking to establish political, social, and economic stability following almost twenty years of armed conflict. A ceasefire agreement has been in effect since February 2002, which marked the beginning of a transitional phase that could lead to a permanent solution of the conflict. However, the current political situation in Sri Lanka remains fragile with the two conflict parties being situated in a stalemate of no war, but not yet peace either. It is now widely accepted that both the dynamics and solutions of the conflict are closely linked to domestic politics and development processes. This report is meant to feed reconstruction efforts and policy dialogue on development and land-related issues. As such, it is expected to be useful for policy makers, practitioners, Government officials and civil society actors.
Structure. The report starts with an analysis of the link between past land policies and inter-ethnic grievances relating to land in Sri Lanka pointing to the different perceptions pertaining among the three ethnic groups. In the subsequent section, the report discusses the impacts of the armed conflict on land use in the North and East. The report then assesses the current situation regarding land tenure security and land access as it can be found after the ceasefire agreement in 2002 and suggests a typology to analyze different forms and types of land issues. It also discusses the implications of the tsunami and policies taken after the tsunami with regard to land issues in the North and East. The report comes up with five core trajectories of findings and uses these to derive some policy conclusions.
BACKGROUND AND OVERVIEW
11. The ethnicized conflict in Sri Lanka can be characterized as a multi-dimensional phenomenon, or a ‘conflict cocktail’ (Korf, 2004), because social and political cleavages occurred at various levels along many lines of dissent between Sinhalese, Tamils, and Muslims. The fundamental issue of the conflict is the grievance between the Tamil minority and the Sinhalese-Buddhist majority, which escalated into a war between the Liberation Tigers of Tamil Eelam (LTTE) and the largely Sinhalese armed forces. In the conflict-affected North and East, rival claims to land are rooted in the memory and perception of the multi-ethnic population. Many Tamils have perceived the expansion of Sinhalese settlements in the Northeast as an act of political and geographic ‘colonization of traditional Tamil areas’ (Peebles 1990). The Sinhalese have seen it as an expansion into areas that they abandoned in ancient times (Peiris 1991). Muslim grievances have intensified after being evicted from their land by the LTTE during the civil war (Hasbullah et al 2005).2 Perceptions of the three ethnic communities:
12. 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, land access and the related governance and policy framework. The following representations of community perceptions focus on interpretations of the current stituation, but it must be noted that these perceptions are influenced by their interpretations of past land policies.3
Sinhalese perceptions: Many Sinhalese settlers in the North and East are particularly concerned that devolution of powers or wide-ranging autonomy for the North and East in an administrative set-up dominated by Tamils and the LTTE will place them in a politically vulnerable position and will make it difficult for them to claim their rights to land. These Sinhalese settlers came to colonization schemes in the North and East in expectation of finding a stable livelihood. Instead, they were affected by Tamil militancy, insecurity due to armed conflict and some became displaced. Many displaced Sinhalese continue to be afraid of resettling in their places of origin because of the continuous uncertainty of these often highly disputed border areas. Especially border villages have been affected by attacks from the LTTE and have sought closer collaboration with the Sri Lankan security forces. Many Sinhalese farmers continue to face obstacles and fear to access paddy fields located close to or in LTTE controlled areas. In addition, Sinhalese living in Amparai have expressed concern about the organized efforts by local Muslim representatives to acquire state lands for their own community.
Tamil perceptions: Most Tamils living in the North and East portray land tenure and access problems through the lens of what they consider ethnically discriminating past land colonization policies. In the view of many Tamils, these land colonization policies and the practice of land administration in the Nothr and East thereafter have favored Sinhalese settlers and disadvantaged Tamils. Many Tamils expect some of these perceived injustices to be rectified in a peace process. In addition, many displaced Tamils still await their chance to return to their places of origin, because they are either not accessible or insecure. In the East, Tamil-Muslim grievances over land access have emerged over the last twenty years. Tamils are particularly concerned about the growing influence of Muslim politicians and politics, which in the view of Tamils, favor Muslims and make them in their view partial war winners, especially in Amparai. Some of these grievances have come to the open after the ceasefire agreement. The continuous militarization of public space in the North and East and the rising political violence between different Tamil militant groups and the LTTE creates a place of high uncertainty and insecurity for Tamil citizens living in the North and East.
Muslim perceptions: Muslims, the second largest ethnic group in the North and East feel that they have always been discriminated against in past state land alienation and development. Further, they feel that the armed conflict has prevented them having access as well as maintaining ownership of land. Muslims consider that they own and occupy comparatively lesser proportion of usable (private) land in the East. Due to natural population growth, land scarcity in their own settlements continues to increase. Muslims tend to live in concentrated locations, which are considered places of Muslimness. Their place of work is often geographically separated from their place of living. Muslims continue to be aggrieved about their inability to access cultivation and residential land located in LTTE controlled areas. In addition, they are concerned about their rights and political leverage power in a prospectively LTTE dominated autonomous North and East. Therefore, Muslim politicians have started to argue in favor of an own Muslim homeland, which is considered to bring security to Muslims living in the East.
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, but the armed conflict has changed the dynamics and the political environment within which such land issues are to be resolved. Past land use policies of the central government have been an important trigger to create these ethnicized interpretations of land-related issues.
Past Land Use Policies4
13. Successive Sri Lankan governments have developed land use policies supportive of the rural small-holder farmers and their request for cultivation land. These past land policies in dry zone Sri Lanka need to be understood as a response to colonial land use policies. The British colonial administration, aiming at facilitating the acquisition of land for (private investors’) plantation development, declared all land not permanently cultivated or demonstrably under private ownership to be Crown ownership (Lands Encroachment Ordinance No. 12 of 1840, also known as Waste Lands Ordinance). This denied a large part of the rural population, especially in the wetlands, legal and physical access to grazing land and land for shifting cultivation (chena). Since this time, almost 80% of the overall land area in Sri Lanka is considered to be state land. Since the establishment of the 1928 Land Commission, the 1935 Land Development Ordinance and specifically after Sri Lanka gained independence in 1948, successive Sri Lankan governments have alienated state land under various titles for private, corporate or state use, especially though to rectify colonial policies and grant access to land for the rural peasantry.5 Legislative framework
The legislative framework on land use policies and property rights has ensured that the (central) state authorities have maintained core powers on alienating state land to private users for both, residential and agricultural purposes.
The Land Development Ordinance (LDO) of 1935 enacted the policy of land alienation to the rural poor and made provisions for land use plans. Land alienated under the LDO was given first as a permit for an initial stage. This permit could then be transferred and a grant issued, which was subject to specific conditions for the title holder, including limitations on transferring ownership. Overall, the state has kept a strong power on land rights, giving the Government Agent power to cancel the permit if land is not properly used. The LDO has been complemented by other ordinances regulating land allocations for other than agricultural purposes (State (Crown) Lands Ordinance 1947) and for alienating land vested in the state after the Land Reform in 1975 (Land Grants (Special Provisions) Act 1979). In addition, the state was able to acquire private land for public purposes through the Land Acquisition Act No. 9 of 1950.
The Mahaweli Authority Act makes provisions for the authority to declare any area as a Mahaweli area and this will vest all powers to administer land in the Mahaweli Authority of Sri Lanka in the so gazetted areas. Similar powers can be vested to the Urban Development Authority (UDA) under the Urban Development Authority Act No. 41 of 1978 to declare any area as urban area, which vests all areas gazetted so under the UDA. Similar provisions hold for the Board of Investment (BOI).
14. Land use policies of the central government authorities in post-independence Sri Lanka have been influenced by three broad policy concerns, which required that central government authorities retain control over land vis-à-vis land users and vis-à-vis local government authorities:
Land productivity, viable production units and food self-sufficiency: Agricultural policies in Sri Lanka have for a long time focused on small-holder agriculture as a response of its neglect during colonial times. This policy is reflected in the Paddy Lands Acts, the Land Reform of the 1970s and various land alienation schemes for village expansion and agricultural colonization. In the last years, recognition is growing that small-holder agriculture has not been a viable means to eradicate rural poverty, especially due to increasing land fragmentation, which has kept many small-holders in poverty. A new policy approach seeking to make (agricultural) land use more productive is reflected in the formulation of a National Land Use Policy, the World Bank supported Land Titling Project and other attempts to liberalize rural land markets to achieve a consolidation of land parcel sizes.
Land use policy and poverty alleviation: After independence, agricultural policies needed to address the problem of increasing land scarcity in the densely populated wet zones and the resulting impoverishment of rural peasants in these areas. Colonization of the sparsely populated dry zone was considered a means to provide new land to these peasants to overcome landlessness and to prevent social upheaval by an impoverished rural population.
Land use and territorial control: Land colonization in the dry zone has become intimately linked with the ethnic conflict in Sri Lanka. The Tamil minority has perceived land colonization in the North and East as an encroachment of Sinhalese settlers into their traditional homeland. Sinhalese politicians have considered land colonization as a necessary instrument to overcome rural landlessness in the wetland areas and as a reinvigoration of past Sinhalese-Buddhist hydraulic civilization. Ethnicity has gathered momentum as a means to assert rival claims to state controlled resources, including land. Since the 1950s onwards, Tamil and Muslim politicians became concerned about what they considered ethnically disproportionate benefits of land colonization scheme and resulting ethnic composition of settlers have become a politically sensitive issue since the 1950s.
Ethnicization and politicization of land issues
15. The ethnicization and politicization of land related issues is closely linked with the history of land policies and land colonization in the North and East. Land colonization schemes in the dry zone have been controversial in Sri Lankan politics since independence and have become one of the grievance issues of the Tamil as well as the Muslim minorities. The centrality of this issue is shown in the fact that control over state land has figured as key issue in all negotiations between Tamil representatives and successive Sri Lankan governments since the 1950s and land will also be one of the core issues in future negotiations between the conflict parties. The principal demand of Tamil representatives has been for land in the Northeast Province to be vested with provincial bodies having autonomous powers independent of the Central Government.
16. The specific concern of the Tamil minority constituency has been that state sponsored colonization would change the demographic characteristics in the North and East, in particular ethnic population ratios. Tables 2 and 3 compile changes in ethnic population ratios in the districts of the North and East from 1911 to 1981. The data shows that the relative proportion of Sinhalese population has increased significantly in Trincomalee and Batticaloa/Amparai districts, though part of this increase took place prior to independence (1948). The relative increase in Sinhalese population, notable in Trincomalee, is not only related to colonization schemes, but Sinhalese also migrated to Trincomalee town for work in ports and other development areas.6 Overall, the controversy over past land colonization policies has been differently received in the three ethnic constituencies:7
Sinhalese representatives tend to argue that dry zone colonization is a necessity as a means to overcome widespread rural impoverishment in the wet zone and that it would not be justifiable to leave large tracts of unutilized land in the dry zone without proper economic use. Furthermore, it is asserted that land colonization schemes did not displace Tamil or Muslim residents, but largely were located in formerly uninhabited areas or in areas settled by Sinhalese. Sinhalese settlements in the East are reportedly of very ancient origin (6-10 Century BC) and land colonization was considered by some Sinhalese representatives as a return to land, which they occupied in those ancient hydraulic civilizations and a rectification of past colonial injustices.8
Tamil representatives were particularly concerned about the change in ethnic population ratios in several districts of the North and East as a result of colonization, which, in their view, favored Sinhalese settlers disproportionately at the expense of Tamils and Muslims. This applies for the Gal Oya scheme in Amparai, the Kantalai tank in Trincomalee and parts of the Mahaweli scheme in Trincomalee and Batticaloa, where a majority of settlers has been Sinhalese. Coupled with this was the concern about redrawing of administrative and electoral boundaries in the East, which was expected to weaken Tamil representation in parliament.9
Muslim representatives in the East largely share grievances of Tamil representatives with regard to past land colonization and feel discriminated in land alienation of these settlement schemes. However, in the national policy debates, Muslim politicians have not played a major role until the mid 1990s and their grievances have been less noted due to the dominating Sinhalese-Tamil dichotomy.
Table 2: Ethnic composition in the North and East (percent)