A Short Guide To Regulating The Activities Regarding Management of Lands in The Northern and Eastern Provinces' Circular: Issues & Implications

A
Short Guide to Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces Circular: Issues & Implications
A Short Guide to

Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces Circular: Issues & Implications

By Bhavani Fonseka & Mirak Raheem Centre for Policy Alternatives (CPA) September 2011

Copyright Centre for Policy Alternatives (CPA) September 2011
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A Short Guide to Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces Circular: Issues & Implications
The Government recently unveiled a policy regarding land in the North and East through the introduction of a Cabinet Memorandum (memo) titled Regularize Land Management in Northern and Eastern Provinces, which was subsequently followed by a Land Circular (circular) titled Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces (Circular No: 2011/04) issued on 22nd July by the Land Commissioner Generals Department in Colombo in order to operationalise the memo. Since then, the Centre for Policy Alternatives (CPA) has been informed that notices and forms have been issued in areas of the North and East for people to register their land under the Bimsaviya project to ensure title registration of their property.1 At the time of writing, it was unclear whether this specific process was the same as the one set out under the circular. Contradictory information was received from the different divisional secretariat units (DSs) where the forms were distributed; increasing confusion regarding the process and the rights of those owning and claiming land in the North and East. The memo and related circular mentioned above are the most recent policy initiatives undertaken by the Government with regard to land in the North and East.2 This short note attempts to map out some of the key elements in the circular and provide recommendations. This short guide by CPA is part of a wider advocacy campaign on land issues in the context of man-made and natural disasters undertaken by CPA for over a decade. This current policy initiative if implemented will have far-reaching implications for key issues including how land claims can be decided, how land is to be alienated, and types of ownership and control that can be provided, which in turn will impact the process of post-war normalisation and development projects. The focus is on state land but the policy initiative will have implications for private land. Given the complexity of land issues in the North and East and the fundamental importance of land to multiple processes including reconstruction of permanent houses, rehabilitation of war-affected families, return to ones land, development and strengthening co-existence, there is an urgent requirement for the Government to provide a policy framework to deal with the issue of land taking on board the rights, vulnerabilities and needs of affected communities and in line with legal obligations and human rights standards. While some of the land issues such as lack of awareness relating to ownership, competing claims, loss of documentation, secondary occupation of land by other civilians or state actors,

1 CPA
has been informed that forms titled- Bimsaviya: National Programme on Land Title Registration were distributed in areas in the North in August 2011, subsequent to the issuing of the Land Circular in July 2011. Information collected from the areas indicate that actors in the area including some government officials are unclear whether the form is issued under the Land Circular or the Bimsaviya project. These are separate programmes but both coming under the Ministry of Lands in Colombo. 2 For more information of policy and other initiatives related to land, refer to- Land in the Eastern Province: Politics, Policy and Conflict- Bhavani Fonseka and Mirak Raheem, Centre for Policy Alternatives, 2010; forthcoming report on land issues in the North (to be printed in October 2011)
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including the military, may not be unique to the North and East, the context of the war resulted in complicating and increasing the scale of these problems.3 Key Concerns: CPA recognises the necessity to formulate policies and processes to address the complex land issues in conflict-affected areas and thus welcomes the overall aim of this current initiative. CPA is, however, concerned with the present circular that contains certain provisions, which are problematic and unclear and may exacerbate fear and apprehension among affected communities. Some of the key concerns include: The policy aims to advantage the land claims of those who left during the war, but the circular does attempt to recognise the rights of other civilians who secured control over these lands and have developed them land. In such situations the circular suggests that alternate land can be provided for the original claimants. However, given that the circular also recommends that land transaction taken during the period of the war be ruled void as it was under terrorist influence the status of these claims is by no means clear. Thus, there is a risk that landowners and claimants, including some of whom secured government documentation for ownership, may be dispossessed. The involvement of the military in the different committees set out in the circular is particularly problematic. The policy fails to reference the National Land Commission that has not yet been established as per the Thirteenth Amendment. The lack of information on this process, both among government officers who are meant to take this process forward and to the general public, is a fundamental problem. The Governments failure to develop a public awareness program has intensified the confusion and apprehension among the general public in the North and East. The memo does make reference to the Diaspora; hence, the publicity strategy for the circulation needs to be both national and international. There is a lack of clarity on who needs to apply for this process or whether all land owners and claimants in the entire North and East should comply. Lands acquired for national security and development purposes are exempt from the process laid out under the circular. Hence, there is lack of clarity on how the land rights of affected families will be guaranteed and how they will be compensated and restituted. There are stipulated brief time periods for applications of land claims and appeals, which may prove inadequate. There was limited consultation of actors from the two provinces during the planning stages, and mainly limited to government officers. It is not clear whether the process is flexible to address problems that may crop up during the implementation.
Mass displacement of civilians, challenges to government administration, the involvement of a variety of armed and political actors, and the destruction of land records are some of the key factors that contributed to this situation.
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Key Elements of the Circular Area of coverage: North and East Focuses on state land but may have implications for private land Addresses land claims, including competing claims where state land is involved Primacy of land claims pre-dating the war, as opposed to ownership granted during the war Effort to find alternative land for a person who has a prior claim in the case of development of a land by an occupier Land required for security and special development projects including for specific housing projects will not be included in the land claims process Develops process to address competing land claims and processes, including through mediation boards. Sets out process for providing land documents issued prior to the commencement of war and during the war, which were damaged or destroyed Alienates encroached state land prior to 15.06.1995 Addresses some aspects of landlessness issue4 Annual permits where payment was not made or renewed annually not to be extended Extends titling programme to the North and East5 In the event of litigation where DS and other officials are party that particular case will not be taken up for resolving competing claims The circular sets out a process to decide land claims in the North and East. The sections below set out the key components of the process.6

4 The process provided in the circular is able to examine claims of those who do not own land and
after inquiries provide land to selected individuals including the landless 5 As provided under the Registration of Title Act. For more information refer to- Bhavani Fonseka and Mirak Raheem, Land in the Eastern Province: Politics, Policy and Conflict, Centre for Policy Alternatives, May 2010
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Process Under the Circular 1. Publicity for process and application The government will inform the public of the initiative using media, web and other means and call for claims over land. (ii) Applicants will be given two months to apply with their claims. (iii) Applications to be made via the relevant Grama Niladari (GN). 2. Examining initial claims The claims will be first examined by a committee headed by the respective DS for the area (first committee). (v) If the documents are damaged or destroyed for a particular plot of land and no competing claims are made for the land, new documents will be issued. (vi) If there are competing claims for a particular plot of land, then the first committee must verify details of each case and decide who has best claim over the land. (vii) An observation committee comprising a minimum of two persons will be appointed comprising of civilians in the area to observe proceedings of first committee. The observation committee will be assisting the committee headed by the DS and provide them with any necessary information of the area. (viii) A conciliator to be appointed to the observation committee. (ix) After the first committee has verified claims, a selection list has to be sent to the Divisional Coordinating Committee for approval. (x) After approval, the list for each area will be displayed locally. 3. Appeals Process The government will call for objections within a period of a month regarding any matters that arise from the list. (xii) Those who are unhappy with the decision can appeal to a second committee, which is to be headed by the respective Provincial Land Commissioner (PLC) and include a representative of the respective GA and area commander. (xiii) The observation committee (as provided above) to assist the second committee if required. (xiv) The second committee will examine objections and put out a list after their deliberations within one month. (xv) If there are disputes, the problems will be directed to special mediation boards that are to be constituted to hear such cases. (xvi) The list will be then sent to the DS who will forward it to the PLC and Land Commissioner as needed. 4. Securing Documentation

6 See process flow chart on page 10
(i)
(iv)
(xi)
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(xvii) Annual permits will be issued with conditions after the list is finalised. (xviii) Long-term leases will be issued for particular projects and development activities. (xix) After a year and if there are no objections, the annual permit will be transferred to a grant/title, which will ensure there is clear title to the land. This title will subsequently come under the Registration of Title Act. 5. Titling (xx) Titling will be a parallel process and with time will aim to cover the entire Northern and Eastern Provinces.7 6. Court Cases (xxi) Land claims processes will be suspended if there are related court cases where the DS and other officials are party to the case.
Concerns, Clarifications and Recommendations CPA recognizes the need to establish a process to investigate and resolve disputes with land claims in a post-war context in the North and East. While the above-mentioned policy initiative is a step in the right direction, there are many concerns with the present process which need to be addressed immediately to avoid creating further problems and increasing confusion and apprehension at the community level. The concerns are listed below. I. Prioritisation of particular claimants and potential for discrimination Preference for land claims predating the war: The Government gives preference to those who owned land in the North and East prior to the war over any other subsequent claim. The preference for previous owners over those who obtained state land during the conflict is a critical point as the latter may have a lesser or even no claim over the land. While the land rights of those displaced need to be recognised and protected, efforts should be taken to ensure that the rights and claims of those who secured land during the course of the war are not ignored. Land distributed under influence of the LTTE and other armed actors: The circular appears to direct government officers to return land to the original claimant when dealing with land distributed unlawfully and under the influence of a terrorist group. While CPA recognises that the LTTE and other armed actors have used coercion to secure land from or for civilians and that government officers may have provided official sanction and even documentation for these land grabs and re-distributions, there is no simple formula to address this problem. Other armed actors, including non-LTTE militant groups, have also distributed land but there is no reference to the validity or lack thereof of these

7 As provided under the Registration of Title Act
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transactions in the circular. There are concerns that civilians who were provided land by the LTTE may face more problems in comparison to other cases where non-LTTE groups or even state actors were involved in the illegal distribution of land. The overt military presence or involvement in the selection of individuals in the committees makes this all the more problematic. There is a risk of certain categories of land claimants losing possession of their land which could have grave humanitarian, social and even political repercussions. CPA recommends that the authorities examine these claims on a case-by-case basis and not have a uniform practice that may dispossess a significant population. With such a situation, it is paramount that those administering and deciding land claims (the specific committees and actors provided in the circular) are knowledgeable of the national legal and administrative framework and the international framework related to land issues and are trained and provided guidance on how to address and resolve land issues and disputes. The circular does, however, state that where permanent houses have been constructed and the land has been developed it is not practicable to recover such lands and therefore alternate state land should be found nearby for the original claimant. This suggests that some recognition will be granted to the ownership rights of those whose claims post-date the outbreak of the war. As suggested in the above paragraph, CPA recommends that the authorities examine these on a case-by-case basis. In addition, the circular states all annual permits issued where lease rentals have not been paid and extended are suspended and will not be extended by relevant DS or AGA. The circular also states that copies for such annual permits should not be issued. While it is important to examine all land claims in a fair and just manner, unfair restrictions such as those imposed on annual permits should be revised. Due to the war thousands were displaced and affected and as a result unable to renew permits annually. The authorities should recognise such impediments and have a case-by-case approach when handling cases of annual permits. II. Military involvement in the process The circular exacerbates the process of militarisation by incorporating military personnel or individuals appointed by the military and police into the three key committees outlined in the circular. For instance, the circular provides for an appeals process in the case of objections being raised with regard to the register. The circular gives prominence to the defense establishment in hearing and deciding land claims. The First Committee of Inquiry includes an Area Civil Coordinating officer while the Second Committee of Inquiry includes a representative of the relevant security commander. The Observation Committee consists of individuals selected from the civil committee, formed by the police or three armed forces. These all raise concerns over the increasing militarisation of the civilian administration, and would further beg the question of whether the various modalities in the circular will provide a fair process and hearing. It is important that processes that are established to decide on land issues and
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related issues should be within the civil administration and not have any involvement of the security and police forces. III. Key Policy Gaps Lack of Reference to the National Land Commission: The present policy initiatives including the circular were spearheaded by the Central Government. Although the Thirteenth Amendment to the Constitution devolves land to the provinces and provides for the establishment of a National Land Commission (NLC), this is yet to be implemented. The Government should establish the NLC to ensure a body that has representation from the provinces can decide on policies related to state land. Lack of clarity on approach to mapping out land issues: There is a lack of clarity regarding land ownership patterns in the North and East, which is a key element in the present day problems related to land. A comprehensive examination is needed to understand the history of a particular land including previous ownership and control patterns. In making an assessment of the land, it is also important to understand the situation of those who have accepted land from non-state actors, possibly under duress or due to poverty, landlessness or other reasons. IV. Information and Publicity Increased Information: There appears to be a significant level of confusion relating to the circular, including among government actors who have to undertake the process. The Government should convene discussions to explain the use of the land circular and key provisions, especially to those Government actors who are involved in the process and the communities in the areas. Publicity Campaign: A significant focus should be on ensuring publicity regarding the different processes set out in the circular including the application and appeals stages. It is important that the Government ensures that its publicity campaign on the circular and the application process raises awareness among the public in the North and East, in other areas of the country where residents from the North and East may now be living and abroad. It is imperative that all the publicity material and relevant forms are available in all three languages Broader consultations: The process of consultations related to the circular should be inclusive and transparent, and not limit information to a few individuals as was done during the formulation of the memo and the circular. It would be beneficial if the Government takes on board any concerns that stakeholders may have and update the circular and any other initiatives. Lack of clarity regarding who needs to apply: There is confusion as to whether all land owners and occupiers need to make a claim. Even though the circular deals with state land, it states that those who claim ownership for state and private lands, should complete the ownership application form. The Government should clarify this issue and provide guidance to potential claimants and officials.
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V. Extension of time periods provided in the circular Time period for applications and appeals: There should be more time provided for applications and appeals. The process of application of claims is two months, which may prove too short. The circular states that objections can be made within a period of a month of putting up the lists issued by the first committee. CPA recommends that more time be given; at least a period of two- three months, for the study of the list by affected communities and so that filing of objections will be provided. Due to various reasons, many people from the North and East have migrated to other parts of Sri Lanka and overseas. The processes mentioned in the memo and circular should take note of these factors and use modes of media that will reach a wider public. VI. Land for national security, development and housing projects Exemption of land claims required to specific purposes: The circular contains provisions such as stopping new land distribution unless it is for security and development activities (including special development projects). This raises the questions how much land will be acquired for such purposes and whether processes established within the present legal framework will be followed including informing the legal owners of such initiatives and providing adequate compensation. Housing: It is unclear whether special development projects are to include all housing initiatives or limited to specific projects such as the Indian Housing Project, as per the memo. It is important that the Government advises the donors and agencies on the status of housing projects and ensures that new steps under the present circular and any other policy directive does not lead to future land disputes. Conclusion While there is a need for new policy initiatives to address issues related to land in a post-war context, there are many concerns with the present process. These concerns need to be addressed immediately by the Government, ensuring that any process established to decide land claims is fair, just and equitable and is not perceived by communities as favouring any particular group. Effort needs to be made to ensure that this policy initiative does not exacerbate land-related tensions and that solutions are found to address land needs of affected communities. There is a likelihood that problems may come up in the future if such processes do not factor in concerns highlighted in this document. In moving forward with the present process and any other land related initiatives, it is paramount that the authorities implement existing constitution and legal obligations, take on board the needs of communities and be transparent and inclusive in the formulation and implementation of any initiatives.
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