Policy Note1


Source: Agricultural Census 2002, Department of Census and Statistics



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Source: Agricultural Census 2002, Department of Census and Statistics
22. The civil war has heavily affected agricultural production in the CAA. In many areas, access to land and livelihood resources have become restricted or insecure due to the politico-military dynamics of the civil war. Agricultural producers have lost revenues and productive assets such as tractors, livestock, seeds, fertilizers etc. The impacts of the ethnic conflict on land use can only be estimated. Table 3 shows government statistics on the changes in the extent of land under agricultural use in the Northeast Province (NEP) in comparison to the North-Central Province (NCP). Both provinces belong to the dry zone and have been colonized in state-supported settlement schemes, such as the Mahaweli. The data illustrates the dramatic decline in land under agricultural use throughout the North and East with the exception of Amparai district since 1982. In contrast, agricultural land use has significantly increased in other rural districts of the dry zone outside of the NEP, as the numbers for the NCP indicate. In the NCP, agricultural land use has risen by 30% from 1982 to 2002, while it has decline by 26.6% in the NEP (and by 38.5% in the Northern districts).

23. This dramatic decline in agricultural land use in the North and East is therefore a result of the dynamics of the armed conflict. It can be related to population movement due to military escalation in specific areas (displacement) or to restricted spatial access to livelihood resources and political uncertainty limiting the economic life perspectives in the North and East during the armed conflict:



Displacement: One of the most significant effect has been population displacement, which left large areas of the North and East vacated and dilapidated. UNHCR estimates a total of 882,601 persons having been permanently displaced during the armed conflict.16 This number includes internally displaced persons (IDPs) and refugees abroad (India, other countries). In addition to these permanent displaced, a lot of temporary displacement of people living in the North and East took place due to military contestation and/or communal violence between ethnic groups. The latter became displaced during increasing military contestation, but returned as soon as the military confrontation eased and political tensions reduced. Many of these people have been displaced several times since 1983.

Restricted (physical) access to land: Many people remaining or returning to their places of home in the North and East faced and partly continue to face severe access problems to their agricultural land.

    1. Security forces occupy large tracts of agricultural and residential land for their military purposes for buildings, camps and fortifications. This problem is particularly notable in Jaffna peninsula, but not confined to Jaffna alone. Similar issues apply for the LTTE’s high security zone.

    2. The LTTE restricted access for Muslims to fields located in the uncleared areas, especially in Batticaloa and Muttur. Similarly, the LTTE acquired land for their camps and fortifications.

    3. Paddy fields were often located in remoter places away from settlements, which made them insecure, so that farmers were reluctant to access their fields and practice cultivation. This applies for farmers from all three ethnic groups, depending on the specific location.

    4. Poor people often use common-pool resources, such as forests and lagoons for livelihood activities, such as hunting and gathering, firewood collection etc. When jungle and lagoons became militarily disputed, civilians were reluctant to continue using these resources (such decline in land use is not reflected in the statistics, since statistics do not account for this kind of informal land use). This particularly affects the very poor, such as widows and landless households.

    5. Landmines have been a constant threat for people to return to their places of origin or to continue cultivation, especially in the Jaffna peninsula.

Political instability and inter-ethnic tensions, especially in the East, discouraged some farmers to continue cultivation during the ongoing armed conflict. For example, Sinhalese farmers in border villages were reluctant to cultivate remotely situated paddy fields. Muslim cultivators, whose fields are located side-by-side with Tamil fields in mixed Tamil-Muslim areas, would not dare to go to their fields in times of inter-ethnic tension. Tamil farmers were not given access to their fields by security forces or their fields were located in militarily contested areas. During times of ethnic tensions, farmers whose fields were located in areas dominated by another ethnic group often sold their land to unfavorable conditions, landlords did not dare to collect their rent or tenants did not bother to pay their rents. The latter particularly happened in the Tamil-Muslim inhabited areas of the East, where Tamils and Muslim settlement are situated close to each other and where livelihoods depended on mutual cooperation in the past. In effect, these processes have created ethnically more homogenous spatial entities and grievances among those who had to leave17.

Lack of economic opportunities: Some farmers have abandoned cultivation due to lack of incentives to produce. The extent of the impact of declining economic opportunities and incentives has not been systematically studied yet and it can be expected that the situation differs considerably across the North and East. Discouraging frame conditions for agricultural production include limited or no availability of inputs, restricted marketing opportunities, taxation by militants, restricted mobility through the established checkpoint system and the problems of transporting some goods into or out of uncleared areas or into areas which were highly disputed (even though not officially declared "uncleared"). On the other hand, some studies also indicate that some farmers have continued agricultural production even under adverse conditions; in some circumstances, substantial investments in agriculture have been done in politically unstable areas, where marketing opportunities and access to inputs were given.18 There are cases where farmers have opportunistically overexploited soils using high value crops, such as onions, to make quick gains in view of an uncertain future.19

LAND USE AND POST-CONFLICT RECONSTRUCTION
24. The signing of the ceasefire agreement (CFA) in February 2002 has created prospects for reconstruction and development in the North and East. These new political and economic dynamics have also affected land tenure security and land access in the North and East. In the three years since the signing of the ceasefire agreement, a number of land-related disputes and grievances have emerged. One needs to distinguish those issues which originate from new opportunities and constraints after the CFA (i) and more protracted land disputes, which have been pending during the armed conflict and whose nature has been altered due to the changing political constellations after the CFA (ii). The ceasefire agreement has provided freedom of movements and has offered opportunities for displaced persons and absentee landlords to make claims for their properties. Many people who had left their property and homes during times of war are now returning to their original place and are claiming their belongings or are demanding assistance from the government. When returning, many of them are not able to access or claim their property and land. In addition, rural households use this freedom to restart traditional and new livelihood activities for which they require access to common-pool resources, such as jungle and lagoon resources.

In this situation, dormant land disputes that had been suppressed during the armed conflict now emerge to the open with new political power dynamics developing in the North and East. Many of these conflicts have their roots in structural issues (e.g. land scarcity), but become reinterpreted in ethnic terms and politically linked with the broader ethnic conflict. A number of inter-communal (inter-ethnic) disputes have emerged after the CFA which have the potential to trigger inter-ethnic violence and/or which have been subject to ethnic and political manipulation. These issues differ regarding extent, intensity and scale between different regions and localities in the North and East


Land issues after the ceasefire agreement

25. The legacies of the armed conflict continue to influence land tenure security and land access in the North and East even after the ceasefire agreement - they affect the ability of displaced persons to return, limit the prospects for reviving local livelihoods and create potential constraints to post-conflict reconstruction:



  1. Land tenure insecurity has significantly increased: During the ongoing armed conflict, due to the overall political instability and prevailing insecurity, land users could never be sure that they would be able to claim their rights to land in the future. Displaced persons often lost their title documents. Many farmers in the North and East only had temporary permits on state land, which can be cancelled by the respective Government Agent. In some circumstances, persons from another ethnic group made opportunistic use of the current political conditions and occupied property of a person from another ethnic group, when the political situation was conducive to do so.

  2. Land access has been restricted in many places: The political instability, military contestation and territorial politics produced conditions, which made large tracts of land under agricultural or other use inaccessible for civilians. Many farmers lost important assets and agricultural implements to make productive use of their land. Access to common-pool resources was often denied or people were reluctant to make use of them due to precarious security conditions, since most of the common-pool resources were arenas of military contestation. Even after the ceasefire agreement, many of these access-related problems are not yet solved (high- security zones, land mines etc.).

  1. Land administration in the North and East continues to be ineffective and prone to political interferences. The implementation of land use policies and land management in the North and East is still hampered by a lack of administrative capacity in the hands of the provincial council administration, the reluctance of administrators to become involved in land disputes, which had an inter-ethnic dimension and the influence of political favoritism in administrative decisions, which often means ethnic favoritism. This situation paralyzes land management in the North and East even after the ceasefire agreement and creates serious repercussions for the perception of land holders about the accountability and effectiveness of land administration. The LTTE has established a separate system of police and courts in the area under their control. The Eelam courts work together with the Tamil Eelam Police to enforce LTTE laws. In the uncleared areas of the East, both courts administered by the Government of Sri Lanka and the courts administered by the LTTE operate. This situation creates confusion amongst civilians regarding the effectiveness, applicability and validity of the judicial system.20 In effect, this situation contributes to persisting land tenure insecurity and insecure access to land for rural households.

  2. Since the late 1990’s the Government of Sri Lanka has been piloting approaches to introduce land title registration in limited locations outside of the conflict affected regions. The advantages of a title registration system over the existing deeds registration system are as follows. The deeds registration system is based on registering legal documents, such as contracts of sales, and has weak, if any, mechanisms for ensuring consistency among these registered documents for a particular land parcel. Therefore, it is possible to have multiple deeds registered against a single property which are mutually contradictory. The title registration system is based on the land parcel itself. Each land parcel is identified by a unique number and rights registered against that property are tracked in a single title registry entry for that parcel. Furthermore, the State guarantees the information in the title registry as being conclusive and is obliged to indemnify parties that suffer as a result of unreliable information. While the land titling program has thus far been piloted on a small scale outside of the conflict affected regions, the successful implementation of this program in the North and East of the country could be an important instrument for addressing the identified conflict related land issues.

Typology of Land-related Conflicts after the CFA

27. In order to analyze the convoluted situation of land disputes after the CFA, this report suggests to differentiate three types of land conflicts. This differentiation is necessary to separate out the structural causes of land disputes from their link with the political dynamics of the ethnic conflict. Three types or levels of land issues are distinguished:


  1. Inter-individual land disputes and property rights issues (individual-individual, individual-state) which remain intra-ethnic and where there is no inter-ethnic dimension involved.

  2. Inter-communal and inter-individual land disputes and property rights issues (individual-individual, individual-communal, communal-communal) with an inter-ethnic dimension involved.

  3. Inter-individual and inter-communal land disputes and property rights issues (individual-state, communal-communal, communal-state, conflict parties) where the inter-ethnic dimension has become dominant. These issues are highly politicized and considered as core fundamental grievances of one or more of the conflict parties.

28. In order to differentiate and scrutinize the three types of conflicts, two analytical categories are proposed which are essential for understanding the link between land and rural livelihoods: land tenure security and land access.

  1. Land tenure security addresses issues of land and property rights, perceived security of these rights among right holders, problem of loss of documents, impacts of conflict on land transactions, land disputes arising from resettlement and reconstruction, especially in the housing sector.

  2. Land access analyses the link between access of vulnerable groups to land and their livelihood opportunities. It looks at the impact of the conflict and the tsunami on livelihood assets (e.g. loss of property) and how the conflict has affected access (and informal rights) of these groups to their land-related livelihood resources (such as agricultural land, common pool resources, e.g. forests).

Governance issues are important for both land tenure security and land access. They entail the policy framework, including formal legislation and traditional laws, as well as the enforcement mechanisms of such laws. The enforcement mechanisms are crucial, since they define the practical implementation of laws. Enforcement mechanisms include land administration (e.g. title registration, title alienation), informal or customary mechanisms for resource access and the involvement of other actors which may influence, legally or illegally, the implementation of land laws and related policy frameworks.

Table 4 enumerates the various land-related issues relating to Level 1-3 types and distinguishes land tenure and property rights, land access and governance issues. The category “Land tenure and property rights” relates to disputed claims for user rights to land (or property), whereas “land access” entails physical and spatial access to land for livelihood purposes which may be restricted due to political insecurity after the ceasefire agreement. Both categories are related to “governance issues”, which look into questions of land administration, land alienation and political interferences in these. Annex 1 provides detailed elaboration and the data sources for each of the listed issues.

29. The boundaries between the three levels of land issues can be fluid, in particular when we look at Level 2 and Level 3. Some issues elaborated as Level (2) type conflicts may become politicized to an extent that they need to be categorized as Level (3) type conflicts. For example, inter-ethnic disputes over land resources, which have structural roots in increasing land scarcity, can become subject to political and ethnic manipulation and then a source of inter-ethnic grievances, which go out of hand or which are used by political spoilers to steer inter-ethnic resentment. Examples could be Sinhalese grievances about inaccessible land controlled by the LTTE or Tamil-Muslim grievances over land access, or disputes over religious structures.

Table 4: Three Levels of Land Disputes and Related Governance Issues



Level 1 type

Level 2 type

Level 3 type

Inter-individual land disputes and property rights issues;

no inter-ethnic dimension involved.

Inter-communal and inter-individual land conflicts;

inter-ethnic dimension involved.

Highly politicized issues (individual-state, communal-communal, communal-state, conflict parties);

Inter-ethnic dimension dominant.

Land tenure and property rights:

  1. Disputed occupation of land (secondary occupants, encroachment of abandoned land),

  2. Disputed titles. False titles, illegal alienation of land (“Japan” deed),

  3. Transfer under duress or forcible fraudulent transfers,

  4. Unclear property rights and occupation of temple lands,

  5. Boundary disputes,

  6. Loss, destruction of title documents,

  7. Gender issues (e.g. legislation discriminating against women, traditional laws).

Land tenure and property rights:

  1. Inter-ethnic disputes over water allocation and land access in irrigation schemes,

  2. Inter-ethnic disputes over competing land uses,

  3. Disputes over fishing landing rights,

  4. Inter-ethnic land transfers during the armed conflict,

  5. Land disputes between returnees and secondary occupants being from different groups,




Land tenure and property rights:

  1. Sinhalese encroachment close to military camps,

  2. Inter-ethnic transfers of land and property, in particular in and around Trincomalee,




Land access:

  1. Landlessness among IDPs and refugees (e.g. second generation),

  2. Land mines and unexploded ordinances makes access to land and property dangerous,

  3. Access problems to common-pool resources (e.g. jungle, lagoon) due to insecurity.

Land access:

  1. Restricted land access in inter-ethnic areas due to political insecurity and fear.




Land access:

  1. Land inaccessible for Tamil farmers located in high security zones and land or property occupied by military,

  2. Land inaccessible for Muslims in LTTE controlled areas,

  3. Land inaccessible for Sinhalese located in or close to LTTE controlled areas (border villages).




Governance issues:

  1. Existing laws creating impediments in obtaining re-possession from long-term occupiers,

  2. Encroachment on state land, sometimes supported by political or militant groups,

  3. Existence of parallel court system established by LTTE can create confusion due to plural institutions in charge for land issues.

Governance issues:

  1. Disputes over religious symbols and their territorial implications,

  2. Resentment towards increasing power and influence of politicians in ethnically biased allocation of state land,

  3. Biased or ineffective administrative rulings on inter-ethnic land rights disputes.




Governance issues:

  1. Land in the North and East alienated to government corporative bodies,

  2. Devolution and administrative powers over land administration,

  3. Boundary redrawing of districts and divisional secretariats according to ethnic lines,

  4. Militarization of administration in some parts of the North and East,

  5. Strategic settlements in the North and East established during the 1980s.

Source: own categorization and compilation from various data sources. Detailed explanations and references are provided in Annex 1.

30. Encroachment on state land has been an issue of much concern in the North and East (as it has in other places of Sri Lanka). A Government Circular issued by the National Land Commissioner requests relevant authorities not to regularize any encroachments that took place after the 15 June 1995. Part of the encroachment, often labeled “genuine” encroachment arises from the need of growing families to give land to their children or from displaced persons to find some place to stay. In other cases, encroachment has been politically supported by often unidentified forces, with the help or silent consent of Army and Police or the LTTE.21 Or militant groups have illegally alienated land to IDPs, for example in Vavuniya. If such encroachment raises issues of inter-ethnic concern, they are to be classified under Level (3) types of issues, since their resolution needs to be incorporated into a broad political settlement.

31. Depending on different use types of land, the specificities of property rights to land may also differ. In addition to private ownership rights, there are a number of user rights without full ownership rights. User rights can be formal, e.g. documented through permits or grants issued by government offices and they may be informal, such as customary rights to use common-pool resources (forests, lagoons etc.). In addition, there can be other types of “rights” or perceived rights, such as illegal occupation of state land, encroachment of forests, and encroachment of private ownership. Some of these land uses can be considered as rights if their legitimacy is based on specific rules, others may be illegal and may require intervention by the state (Table 5).
Table 5: Characteristics of Various Tenure Rights

Land Rights

Ownership Rights

User Rights

Formal

Inherited or purchased or government transfers with title deeds
– mainly urban and plantation.



Largely legal time bound agreements such as lease holdings
– mainly urban

Surveyed and mapped.

Long-term lease of land such as in colonization schemes
– mainly rural

Informal

Traditionally inherited, largely unsurveyed and without legal documents
– mainly rural



Traditional land sharing, theoretically legally binding, such as ande, thattumaru and kattimaru
– totally rural

Access to common property – both urban and rural





Other “rights”

Illegal use of public land – squatting on urban public land; encroached forests for agricultural purposes; informal “sharing” of common property land such as for free grazing.

Source: IPS (2004)

32. The specific forms of ownership and user rights and the complex legal specifications of different titles create further confusion and prospects for disputing claims. These convolutions in user rights are manifest in a number of issues relevant for Level 1 and 2 type land conflicts:



  1. The boundaries of state and private land ownership are fuzzy, in particular for the case of permit titles, since the state alienates land for private use, but retains some powers to control the proper use of it. Such legislative clauses are open to interpretation and offer scope for corruptive uses or political interferences, for example the possible cancellation of permits. The misuse and other types of malpractices and frequent changes in land policies with regard to title specifications have contributed to further confusion on the aspect of land ownership, both among title holders and the local administrators.

  2. The responsibilities of different state authorities to alienate state land for different uses are often unclear or disputed between central and provincial authorities, because central government authorities have vested land in the North and East with a number of state agencies which too have conflicting claims over land.

  3. The land administration system, in particular regarding documentation of titles, is complex for both, state and private land. Overlapping administrative responsibilities for specific land issues, for example governing agricultural land use and water rights in irrigation schemes, further confuses responsibilities for land administration and land dispute resolution among different government authorities.

  4. A serious concern after the ceasefire agreement has been that a number of rights holders have lost their documents and that parts of the documentation held by the state in land registries have been destroyed or damaged. In some cases, illegal transfers have been “regularized” by false deeds or other documents.

33. There is also an ethical dimension in land transactions: although the formal dealing of land transfers may have been legal, some land transfers have been done out of a situation of distress by the seller and created conditions favouring the buyer of the land. Such allegations are often brought forward by the various ethnic groups.

LAND USE AND POST-TSUNAMI RECOVERY


34. The Indian Ocean tsunami on 26 December 2004 has affected the conflict-affected areas of Sri Lanka with particular gravity. It displaced some 430,000 people and left more than 100,000 homeless/landless. Around 70% of the affected areas are within the conflict-affected areas, placing an additional burden to this already affected zone. The overall damage is estimated to be around 1 billion US $ (4.5% of the GDP). The percentage of population affected was highest in the Amparai and Mullaitivu districts with concentrations of Tamil and Muslim populations respectively. The Batticaloa and Amparai districts alone account for 43% of the affected population island-wide.22 In these areas, the tsunami affected people were already highly vulnerable in social and economic terms due to the effects of armed conflict and as a consequence, their resilience to respond to the disaster was limited. Some people who were internally displaced due to the armed conflict have become displaced again by the tsunami. Coastal Muslims many of whom are fishing communities suffered by far the largest casualties as a result of the tsunami accounting for 53% of the Tsunami deaths.23


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