Policy Note1



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Table 6: Districts in the North and East Affected by the Tsunami



District

Displaced Persons

Deaths

Injured

Missing

Damaged Houses

In welfare centers

With relatives

Total

Completely

Partially

Jaffna

7,635

33,381

41,006

2,640

1,647

540

6,084

1,114

Kilinochchi

0

1,603

1,603

560

670

0

246

-

Mullaitivu

8,212

14,390

22,602

3,000

2,590

412

5,033

424

Trincomalee

13,778

59,208

72,986

1,078

1,328

45

4,830

3,835

Batticaloa

19,770

35,047

54,817

2,975

2,375

340

12,232

5,376

Amparai

22,215

77,797

100,012

10,436

6,711

161

17,117

10,574

Total
Northeast


71,600

221,426

293,026

20,689

15,321

1,507

45,542

30,323

Total
Sri Lanka

87,270

424,158

511,428

31,229

23,189

4,093

63,447

43,361

Source: UNHCR statistics as of May 2005, compiled from District Secretariats of the affected Districts (http://unhcr.lk/statistics).
35. The tsunami has further added to land-related problems in the conflict-affected areas of the North and East.24 The impacts of the tsunami on rural livelihoods in the conflict-affected areas have been dramatic.25 The tsunami surge completely destroyed around 99,480 homes and partially damaged about 44,290. The completely and partially damaged houses together comprise 13 percent of the housing stock in the administrative divisions along the coast. The tsunami has displaced more than 500.000 people adding to the still unresolved problems of resettlement of persons displaced by the armed conflict.26 The destruction and loss of lives has been highest in the most densely populated areas of Amparai and Batticaloa coasts and it is difficult to find alternative housing locations for tsunami affected families in these areas, limiting the potential scope for preventive policies to deal with future tsunami disasters. In some areas, sea water intrusion and dune formation have affected coastal land quality in an already densely populated area with high pressure on residential and cultivation land and have contributed to decreasing land availability for cultivation.
The buffer zone policy

36. Immediately after the tsunami, one core government policy for future disaster prevention has been the establishment of a setback area (or a buffer zone) on the coastal belt to provide protection against future tsunami events. This policy has involved the large-scale relocation of people living in those coastal areas declared as a setback area. The government’s policy on this, in particular on the specifications of the setback area has changed several times since January 2005 and seems to have been largely abandoned by the end of 2005. Originally, the government announced a modification of the rules governing land use along the coastal belt of Sri Lanka declaring a 100/200m setback area. The Urban Development Authority (UDA) published guidelines27 providing rules regarding the development of the 1km wide stretch of land from the mean tide line. These guidelines defined a setback area or buffer zone which is limited to vegetations, parks, ports, fishery harbors and related developments as well as historical monuments and archeological sites. This setback area was defined as 100m landwards from the coastal line in the western half of the country from Point Pedro to Point Dondra and 200m landwards from the coastal line in the eastern half of the country from Point Pedro to Point Dondra. The Task Force for Rebuilding the Nation (TAFREN) has specified this buffer zone further providing district-based specifications of the 100/200m setback area. Reconstruction of damaged or destroyed houses will not be permitted within the 100/200m setback area. The government’s policy was to provide free of charge a house with minimum 500 sq.ft. in close proximity to the original location for those to be relocated from the setback area. The LTTE declared a 400m setback area in the eastern coastal shores of the Vanni and implements this in areas under its control.

37. The government's originally rigid proposal on the setback area has created a number of land-related concerns in the conflict-affected areas. A strict implementation of the original proposals would have implicated a large-scale relocation of tsunami victims, which was difficult to implement in some parts of the East, where population densities are very high along the coastal belt and alternative (state) land was not available in sufficient quantity. In addition, population relocation in multi-ethnic areas touches upon the fragile ethnic balances we have referred to above. It became clear that for practical reasons a strict enforcement of such policy would not be possible. For example, in the East, such enforcement would have required the relocation of considerable parts of major cities, such as Batticaloa and Trincomalee. In response to these criticisms, the Sri Lankan government has revised its original proposal various times, in particular increasing the flexibility of its handling and also revising the overall specifications of the setback areas in different localities and seems to have abandoned it overall by the end of 2005. The repeated changes in government policies have created a situation of uncertainty and confusion among administrators, aid agencies and affected tsunami victims formerly living in the declared setback areas.28 At the same time, local authorities had to take account of possible changes in administrative responsibilities arising from a joint mechanism Post-Tsunami Operational Mechanism (P-TOM) between the Sri Lankan government and the LTTE for administrating aid funds in the North and East in summer 2005. Many rules and decisions remained ambiguous even to local government officials as a consequence of pending decisions at the centre.29

38. Moreover, the centralized emergency planning after the tsunami has reshuffled the delicate balance of administrative responsibilities between central government and provincial councils and within the central government:30 The government has made use of the regulations passed in the Coast Conservation Act No 57 of 1981 as well as the powers granted to the Urban Development Authority (UDA) in the Urban Development Act No. 41 of 1978 and the Gazette (Extraordinary) No. 223/16 dated 17 December 1982, which declares the coastal zone area 1km from the mean high water line as "Development Area" falling under the purview of the UDA requiring approval from the UDA for any developmental activity in this zone. After the tsunami, the UDA has withdrawn powers with regard to this Development Area it had formerly delegated to the local authorities by Public Notice dated 31 December 2004. In addition, the government has passed an Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005 providing police officers or members of the armed forces with powers to order any person in or about certain areas, including "the seashore" to remove them from that place or to use force to give effect to such order.31 Administratively, the coordinating power has been vested in newly created authorities attached to the President's office, such as the Task Force for Rebuilding the Nation (TAFREN), which is responsible for construction of permanent shelter for the displaced of the tsunami from the setback area.

Buffer Zone Policy and Land Conflict

39. Land scarcity and pressure on land is likely to increase in the densely populated areas of the East, especially in Amparai, Batticaloa and Kinnyia. The government's original relocation policy also implied that reserve land and agricultural land be converted into residential land for relocation schemes. This would have been likely to increase the pressure for economic use of land by cultivation, livestock grazing and other uses with potential for local land disputes. Due to the delicate multi-ethnic composition of the population in these areas, land disputes can easily be reinterpreted in ethnic terms or used for political purposes. Also, increasing pressure for land may decrease land access based on informal user rights which are often important for vulnerable households (e.g. firewood collection). Many tsunami victims 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). For those having lost their documents, similar problems apply as compared to conflict-related IDPs losing their property documents.

40. Table 6 summarizes the major concerns relating to land and conflict that have emerged in the post-tsunami recovery phase. Some of these issues are linked with the ethnic conflict, for example the concern about relocation and how it may affect “ethnic population ratios” in specific localities of the East, but also the fact that some state legislation discriminates against women (CPA 2005, UNHCR 2005). Of particular concern is the differential treatment of conflict-affected people and tsunami-affected people regarding the entitlement to state welfare packages and to state land allocation, which may create grievances among those conflict-affected IDPs, who do not benefit from the post-tsunami recovery aid and are also not allocated state land in the process.

The table follows the analytical framework set out above (see Table 4) and differentiates three levels of land conflict and three categories (land tenure, land access and governance). The table lists issues which have emerged in the post-tsunami recovery process as well as enumerates items that may potentially create disputes and inter-ethnic tensions in the future. The former largely relates to the government’s buffer zone policy, how it may affect land markets and thus land access for poor households and the kind of uncertainty the policy process has created. The latter points to the potential ethnic sensitivity of some policies, e.g. population relocation in multi-ethnic areas.



Table 7: Post-Tsunami Reconstruction and Land Related 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 and ethnicized land issues (individual-state, communal-communal, communal-state, conflict parties);

Inter-ethnic dimension dominant.

Land tenure and property rights:

  • Government’s conditions for acquisition of private land for relocation program has long not been specified creating uncertainty,

  • Loss, destruction of title documents in the turmoil of the tsunami,

  • Existing state legislation and traditional inheritance laws discriminating against women.







Land access:

  • Fishing communities feel insecure about their future livelihood options related to the coastal zone and their access to land located in the buffer zone.

  • Land mines and unexploded ordinances washed away by tsunami make access to land and property dangerous.

Land access:

  • Government's policy on relocation creates additional pressure on scarce resources, which may trigger further resource-based disputes between different communities and their competing land uses, potentially triggering inter-ethnic disputes.







Governance issues:

  • Lack of transparency and accountability in beneficiary selection for housing relocation,




Governance issues:

  • lack of transparency and accountability in the allocation of land for relocated families creates suspicion of ethnic favoritism.

  • differential treatment of tsunami affected populations belonging to different ethnicities or resentment of non-affected communities vis-à-vis the large-scale assistance granted to tsunami-affected communities from another ethnic group.

Governance issues:

  • The government’s policy to recentralize land acquisition for alienating it under the relocation program affects the delicate question of balance of powers between centre and provincial authorities,

  • relocation may affect ethnic settlement patterns and political concerns from different ethnic groups may arise in this regard.




Sources: CPA 2005b, 2005c, Frerks and Klem 2005, Steele 2005, UNHCR 2005.
Own categorization.
CONCLUSIONS
41. Post-conflict and post-Tsunami reconstruction processes need to reflect the changes which have taken place during the times of armed conflict and the dynamic shifts in land use after the ceasefire agreement. Reconstruction processes are closely linked with land use, in particular with regards to housing (re)construction after the armed conflict and the Tsunami and livelihood support projects to revive the regional economy in the North and East, which relies on agriculture as its backbone. In addition, any constitutional and administrative reform as part of reconstruction processes and as part of peace building will affect the power balances between central and provincial authorities with regard to land administration.

42. As shown throughout this report, land and conflict in the North and East includes a large number of different types and levels of land issues depending on specific locations. The research has identified five major trajectories, which define the opportunities and constraints for a comprehensive and effective policy framework for land access and land tenure security in the North and East after the ceasefire and after the Tsunami:



  1. Current and emerging land disputes need to be understood in the context of past land policies, which have kept administrative power over land use with central government authorities. The ethnicization of some land use policies has been mirrored in biased and partial implementation of land access and tenure security in the North and East, in particular in state land alienation, in regularization of encroachments and in delayed and controversial rulings for land disputes.

  2. The armed conflict has further aggravated the pressure on land resources and has increased ethnic grievances related to land use. Land use has declined dramatically due to population displacement, restricted access to land (mines, military confrontations) and low economic incentives to invest on land due to the prevailing political insecurity. The armed conflict has therefore increased land tenure insecurity and reduced access to land, in particular for vulnerable families.

  3. Although some ethnic tensions are aggravated by land disputes, competing access to land and restrictions over land use are often rooted in deeper lying structural causes. They are only partly an expression of inter-ethnic grievances that deepened during times of armed conflict, but are caused by increasing pressures for scarce resources, such as population pressures, bad governance, unfavourable social and economic processes as well as political decisions. Since the signing of the ceasefire agreement, protracted disputes over land access and use have surfaced in the North and East after being suppressed during the armed conflict. In addition, new land issues have emerged as a result of the return of displaced persons.

  4. Anecdotal evidence shows that some past policies and the impacts of armed conflict have transformed the governance frame of land access and land tenure security in the North and East creating ethnicized avenues for land administration even on local and regional levels. In this context, citizens, as claimants of rights or applicants for land, have developed a general mistrust vis-à-vis perceived partialities of local and regional administrators according to their ethnicity or political affiliation.

  5. In more operational terms, key aspects of tenure security include the recognition and recording of land-related rights. The Government needs to move forward with plans to put in place a parcel-based title registration system, building upon the experiences with piloting this activity in recent years. This will likely be a long-term undertaking, however. In the meantime, intermediate options can be implemented (communal recognition of property and use rights; improvements in the existing deeds registration system, etc.).

  6. The government’s policy after the Tsunami has added to this general level of mistrust vis-à-vis state authorities. The set-up of the buffer zone and the decision to relocate houses from within this buffer to more secure places have been taken and implemented without adequate participation of the affected population. Selection procedures have been prone to political manipulation. Due to the sensitive nature of land issues, in particular when relocation of populations in multi-ethnic areas is involved, lack of transparency and accountability can contribute to perceptions of partiality of state authorities among ethnic minorities.

43. The analysis of the different levels and types of land issues suggests that, while land conflict needs to be placed in the broader political and historical background, many land issues in the North and East can be solved prior to a final political resolution of the ethnic conflict. This applies in particular for Level 1 type conflicts, where no inter-ethnic dimension is involved, and largely to Level 2 type conflicts, where an inter-ethnic dimension is involved, but is not dominant. The latter types of conflict are of particular concern, since if left unattended, they may become politicized and ethnicized, so that they need to be considered as Level 3 type conflict where the inter-ethnic dimension has become dominant. In order to avoid such escalation of land issues into inter-ethnic grievances, it is important that aid agencies, non-governmental organizations and government agencies involved in reconstruction and development work of the conflict-affected areas, including post-tsunami recovery work, carefully consider the constraints and the opportunities of settling land issues in their area of work.
POLICY IMPLICATIONS
44. 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. Many of these land conflicts ought to be solved as a prerequisite for ensuring a sustainable reconstruction and development process in conflict and tsunami affected areas in the North and East.

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. In this context, some policy implications have been identified as described in the section below.



Tenure Security:

First, there is a need for an effective land administration system that responds to the particular context of a conflict and reconstruction situation. This will certainly entail a greater inter and intra-institutional coordination and strengthening the existing administrative and operational capacities that were established for normal times and standard situations. A core one is related to the ability for dealing with competing claims over land and other land-related disputes. 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).

While the overriding principle for dispute resolution should be subsidiarity, i.e. disputes should be solved on the lowest institutional level possible, it is advisable that existing national administrative and judicial bodies enhance their capacity for monitoring and tackling pending cases (i.e. huge land-related backlog at the national level). Another area for improvement is related to the need for fast-track mechanisms that could, for example, deal with minor land disputes surrounding residential land, boundary disputes etc.(pls see Annex 2, table 8 for details). The principle of subsidiarity has, however, the potential risk that dominant local elites capture the decision making power surrounding land-related matters. This would have to be mitigated early in the process by establishing the necessary checks and balances.

Another key element for tenure security is the formal recognition of land-related rights by the state and third parties. Thus, land title registration plays an important role as part of a sound land administration system. In this context, some policy implications are identified. First, higher priority needs to be given to land title registration and the Government’s current efforts to prepare for a national program for title registration. Areas that require improvement are the legislative basis for registration, institutional arrangements for conducting this work, and greater public outreach to inform the population of the benefits of the program and to obtain feedback from intended beneficiaries. Second, given the conflict and post Tsunami situations, the title registration system may be more adequate to such circumstances. International experience points to the advantages of administrative mechanisms as part of the process of adjudication of rights where disputes or situations of unclear rights can be reviewed and resolved in a transparent manner with community involvement. Experience with piloting the title registration system has shown that significant amendments to the Registration of Title Act of 1998 will be needed if the system is going to be capable of dealing with anything other than the most clear cut cases of land tenure rights. An additional challenge will be to implement it in the conflict affected areas.

Third, and as needed corollary to the first point, well defined, 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, as we can see in Annex 1 and Table 8, within and outside the governmental machinery. Most of such institutions need to see their actions as services to be provided at low cost in order to guarantee a sustainable land administration system. Leading edge experience internationally points up the potential advantages offered by information technology in bringing greater transparency and increased efficiencies in the provision of land administration services.

Land Access:

Land-related inequities should be addressed as early as possible. There is ample evidence that initial land endowment or subsequent redistribution failures that are not root causes for conflict could easily aggravate or trigger it. In Sri Lanka, as we have analyzed, initial failures, the very strong state-dominant land holding structure in some areas, and the subsequent politicization of related issues are determinant for the existing power relations and distortionary policies.

As is the case with tenure security issues, the particular Sri Lankan conflict context calls for differentiated and innovative approaches to guarantee access to land, in particular for the most vulnerable population. Whatever the approach may be, the ethnic balance should be a primary criterion.

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 on the one hand. On the other, land conflict is usually detrimental to equity and Sri Lanka is not an exception. Competing claims for land (e.g. among different ethnic communities), land scarcity, in particular in the conflict affected areas and consequent landlessness contribute to exacerbate social tensions and the overall conflict situation. An unambiguous policy framework for state land distribution, land allocation to returnees, tsunami affected and displaced population, and overall access to land is essential.

46. 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. The challenges in relocation and setback area policies after the tsunami have illustrated the crucial importance of establishing rules-in-practice and finding enforcement mechanisms for such good governance practices, which are perceived as fair, accountable and effective by all involved stakeholders. It is unrealistic to expect immediate improvements in administrative practices, but development agencies, government departments and non-governmental organizations working on reconstruction and development in the North and East need to urge administrators involved in land issues relevant for reconstruction and development to follow transparent planning procedures, encourage beneficiary involvement and criteria-based decision-making. They may also consider how they can strengthen the administrative capacities of governmental agencies involved in land allocation and land administration.

As part of good governance, limiting discretionary bureaucratic behavior is a must. The following policy principles could support the Government efforts in the area of land administration.

i. Inclusiveness and fair treatment: all citizens should be treated based on the same technical criteria regardless of ethnicity, caste or class.

ii. Transparency: decisions relating to land rights need to be transparent to all affected stakeholders. This requires a change in processes of land allocation and in some land administration mechanisms; and a change in administrative culture (relationship between government officer and citizens).

iii. Accountability: administrators are to be held accountable for their decisions by the affected stakeholders and the state should enforce an effective accountability framework.

iv. Participatory and consultative: the process of land allocation and land administration should involve the affected and concerned stakeholders in a participatory and consultative process.

v. Locality-specific and criteria based: it is crucial to acknowledge and understand the complexities of a particular socioeconomic and political context. The framework planning of land allocation and land use in the Province and on lower levels of administration need to base their decisions on local dynamics as well as on scientific and technically sound criteria. This applies, for example, for the implementation of the buffer zone policy in the tsunami affected areas.

vi. Comprehensive: A sound land administration system will aim at alleviating inequities and inefficiencies in the allocation of land resources and in the provision of land tenure security. In a post- or semi post conflict setting, this can only be achieved if both the root and causes and consequences of conflict are taken into account. Addressing land and conflict issues demands an integrated and comprehensive approach.



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