MEMORANDUM THE CENTRE FOR POLICY ALTERNATIVES (CPA) LAND ISSUES ARISING FROM THE ETHNIC CONFLICT AND THE TSUNAMI DISASTER

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1 MEMORANDUM submitted by THE CENTRE FOR POLICY ALTERNATIVES (CPA) on LAND ISSUES ARISING FROM THE ETHNIC CONFLICT AND THE TSUNAMI DISASTER INTRODUCTION The Centre for Policy Alternatives (CPA) has prepared this Memorandum on Land Issues Arising from the Ethnic Conflict and the Tsunami Disaster in order to provide policy makers and stakeholders with a discussion document to assist them in the formulation of land policies. CPA has been at the forefront of civil society interventions in the constitutional reform debate in Sri Lanka, consistently advocating democratic values and federal mechanisms as being essential in the building of a united and more democratic Sri Lanka. The tsunami disaster and the reconstruction efforts it has necessitated, present an opportunity for revisiting some governance reform issues. In particular, we stress respect for the principles of power-sharing and regional autonomy which are not only pivotal to the peaceful resolution of Sri Lanka s ethnic conflict, but are also essential in promoting transparency, responsiveness, representativeness and accountability. This Memorandum is structured in three parts. The first part deals with the overarching framework for coordinating issues of land and land use planning. The underlying themes of this section include good governance principles such as accountability, transparency, participation, capacity building and subsidiarity. The second part examines the legal and policy framework for land occupation and ownership, focusing on the development guidelines in respect of the coastal zone of Sri Lanka and issues relating to state and private land. The third part discusses land issues relevant to internally displaced persons (IDPs), including transitional shelter and resettlement programmes, restitution of property, sales made under duress, lost or destroyed identity and property documents, boundaries, women IDPs, financial and social assistance, freedom of movement, landmines and unexploded ordnance and High Security Zones. In each of the three parts, the Memorandum examines the current land or land use situation with reference to existing legislation or policies, and highlights issues that may have arisen as a result of both the ethnic conflict and the tsunami disaster. With reference to international best practices and good governance principles, CPA has formulated recommendations that it hopes will contribute to the process of developing strategies and 1

2 policies to respond to the challenges raised by these situations. It is the basic premise of this Memorandum that while the tsunami disaster necessitates an immediate and urgent response, the issues arising from the ethnic conflict should continue to be a principal focus of Government and civil society. CPA urges the Government to respond to the after effects of both situations with equal urgency and diligence. 2

3 I. OVERARCHING FRAMEWORK FOR LAND In this first section, the Memorandum will examine the constitutional framework and existing modalities of devolution, with a particular focus on the jurisdiction of Provincial Councils over land and related subject areas. The Memorandum will also canvass the existing structures laid out in statutes establishing local authorities such as Urban Councils, Municipal Councils and Pradeshiya Sabhas as well as other statutory authorities such as the Urban Development Authority (UDA). The Memorandum will then examine the existing national land policies and draft policies with reference to international best practices. The section will conclude with CPA s recommendations with respect to good governance practices, transparency, accountability, and coordination between different levels of government involved in land issues and land use planning. 1.1 Institutional Framework The Central Government and Provincial Councils The Thirteenth Amendment to the Constitution of Sri Lanka provided that certain powers be assigned to the provinces through a process of devolution. Prior to the enactment of the Thirteenth Amendment, initiatives on decentralisation had taken place through statutory frameworks establishing local authorities. Devolution occurs when legislative, administrative and executive powers previously vested in the centre are vested with the provinces, which ensures that powers of governance and implementation are taken to a second tier. Decentralisation on the other hand, is when certain management functions are delegated to local bodies ensuring participation in the decision making process and taking power closer to the people. Provincial Councils have within their purview land, rehabilitation, reconstruction and other related matters as set out under the Thirteenth Amendment. Under Article 154 G(1), every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in the Provincial Council List. Although Provincial Councils have powers to make decisions on matters falling under the Provincial Councils List, the central government has overriding powers on all devolved matters. Therefore in areas such as land, rehabilitation and reconstruction, the central government is the ultimate authority, and has the final say. The powers of Provincial Councils are further limited by their dependency on the central government for financial resources. 1 1 Pursuant to Article 154R, the central government may allocate funds to the provinces on the recommendation of the Finance Commission. 3

4 Provincial Council powers extend to rights in or over land, land tenure transfer and alienation of land, land use, land settlement and land improvements, and irrigation work, such as planning, designing, implementation, supervision and maintenance of irrigation works (other than irrigation schemes relating to rivers running through more than one province or inter provincial irrigation and land development schemes). Land comes under the jurisdiction of Provincial Councils subject to the following exceptions granting jurisdiction to the central government: 2 State land required for the purposes of the central government in a province, in respect of a reserved or concurrent subject may be utilized by the central government. The central government must consult the Provincial Council with regard to the utilization of such land. The central government shall make available to every Provincial Council state land required by such Council for a Provincial Council subject. The Provincial Council shall administer, control and utilize such state land. Alienation or disposition of state land within a province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council. The central government has jurisdiction over Inter Provincial Irrigation and Land Development Projects that utilise water from rivers flowing through more than one province. The central government has jurisdiction over all schemes where the command area falls within two or more provinces such as the Mahaweli Development Project. With respect to such Inter Provincial Irrigation and Land Development Projects, the central government, in consultation with the Provincial Council, will determine the criteria regarding the size of holdings of agricultural and homestead lands arising out of these projects. Selection of allotees for such lands and the administration and management of such projects will be under the purview of the central government. 3 These exceptions indicate that although land is a devolved subject, the central government plays a major role in the control and management of state land. The exceptions to the competences of Provincial Councils in respect of land allow statutory authorities established by the central government to impinge on areas of Provincial Council jurisdiction. The overriding power of the central government therefore raises the question of the degree of control and independence exercised by Provincial Councils. Modern trends in the design of government institutions favour decentralisation in the distribution of powers because it is widely acknowledged that localising decision-making authority encourages diversity, greater responsiveness of government, and provides greater opportunities for broader citizen participation in government. If governance is to 2 Appendix II (Land and Land Settlement) to the Thirteenth Amendment to the Constitution. 3 Distribution of all land for such projects will be on the basis of national ethnic ratio and priority will be given to persons who are displaced by the project, landless of the District in which the project is situated and thereafter the landless of the Province. The distribution in such projects would be done as far as possible not to disturb very significantly the demographic pattern of the Province and in accordance with the principle of ensuring community cohesiveness in human settlement. 4

5 be brought closer to the people, there needs to be a concerted effort by the central government to decentralise and respect constitutional devolution of powers. However, because Provincial Councils do not have adequate capacity or resources to carry out their functions, it is vital that efforts are made to build capacity within Provincial Councils so that they can govern effectively. Although only the Southern and North-East Provinces were badly affected by the tsunami, CPA recognizes the need for capacity building in each of the Provincial Councils. All Provincial Councils need assistance and resources in order to enable them to carry out their functions effectively and to lessen their dependence on the central government. This should be undertaken through technical and financial assistance and training. Any attempts to strengthen the existing structure of the North East Provincial Council (NEPC) will have to take into consideration the fact that it is not functioning as a political entity, and there have been no elected representatives in the legislative branch of the Provincial Council since March For practical purposes, the NEPC is solely an administrative body. Given the role played by the LTTE and the multiplicity of stakeholders in the North-East, any future plans and initiatives must be inclusive. The degree of decentralisation in decision-making and management with regard to land is reflected in the legislative enactments discussed below. However, as with the provisions of the Thirteenth Amendment, there are legislative, institutional and practical constraints on the effectiveness of these institutions in exercising their jurisdiction over land and land-related issues Local Government Pradeshiya Sabhas Act No. 15 of 1987 The Pradeshiya Sabhas were established to provide opportunities for citizens to participate effectively in decision-making relating to administrative and development activities with respect to local land issues. Although decentralisation has occurred to some degree, exceptions to the powers of the Pradeshiya Sabhas are laid out in section 17(2), which include the right of the central government, at any time, to resume or dispose of state property for public purposes. The powers of the Pradeshiya Sabhas are also limited with respect to state land that is vested in the military or any other authority. The Pradeshiya Sabha has the power to make by-laws in relation to certain types of land, including (but not limited to): open spaces and places for public recreation; the care of waste or public land; the maintenance and management of immovable property vested in or under the control of the Pradeshiya Sabha; and the putting up and preservation of boundaries and fences for private and public lands. 5

6 Urban Councils Ordinance No. 61 of 1939 The Urban Councils Ordinance No. 61 of 1939, as amended, provides for the establishment of Urban Councils for the purpose of local government in Sri Lanka. Section 32 vests in the Urban Council of each town certain immovable property including, but not limited to, waste lands and open spaces, public lakes, streams, public tanks, ponds and channels, and certain state land that has been transferred to the Council with the sanction of the President. However, nothing in the Ordinance may: (i) affect or prejudice the right or title of the State to any such property or the right of the State to resume or dispose of such property for public purposes; (ii) affect or prejudice any right, title or interest which any military or other authority has or may have in any such property; (iii) empower the Council to dispose of any such property other than in accordance with the terms and conditions set out in the vesting order, certificate or other record relating to such property; or (iv) prevent the Council from surrendering to the State any immovable property. Although the Pradeshiya Sabha Act and the Urban Councils Ordinance are evidence of attempts to decentralise, the exceptions mentioned above show that certain powers have been retained by the central government. Given the participatory and decentralising objectives of these legislative enactments and the benefits of decentralisation in policy formulation, implementation and evaluation in terms of responsiveness, the effectiveness of the Pradeshiya Sabha and Urban Council systems is questionable. The responsiveness of policies, plans and initiatives to the needs of particular communities will be limited if much of the decision-making power remains with the central government. The authority to manage and control must be decentralised to ensure that the particular needs of individual communities are taken into account when developing policies, programs and initiatives. This will also facilitate capacity building and empowerment of communities, and ensure that there is public consultation and participation in policy development. The Urban Development Authority The Urban Development Authority Act No. 41 of 1978, as amended, established the UDA in order to promote integrated planning and implementation of economic, social and physical development of areas declared by the Minister to be Urban Development Areas. According to the Act, the UDA shall develop Urban Development Areas to facilitate better physical and economic utilization of such areas, and may delegate its planning powers over Urban Development Areas to Local Authorities. 4 Part V of the Act provides for the acquisition of immovable property and sale of lands belonging to the UDA. Where the Minister certifies that any land vested in a Local Authority 5 is required by the UDA, the Minister may, by order published in the Gazette, 4 Pursuant to Section 5 of the Urban Development Authority (Amendment) Act No. 4 of 1982, which adds section 23(5) to the Urban Development Authority Act. 5 Section 29 of the Act provides that Local Authority means any Municipal Council, Urban Council, Town Council or Village Council and includes any Authority created and established by or under any law 6

7 vest such land in the UDA. The Act confers absolute title to any land or interest in land acquired by the UDA, and provides that no compensation be payable. Section 16 sets out the procedure by which the central government may acquire land under the Land Acquisition Act for the UDA, and section 18 provides that the UDA may, with the approval of the Minister, alienate land for the purposes of urban development. Under the Urban Development Projects (Special Provisions) Act No. 2 of 1980, where the President is of the opinion that land is urgently required for an urban development project that would meet the requirements of the general welfare of the people, they may, upon the recommendation of the Minister in charge of urban development, make a declaration that such land is required for urban development purposes. Such land will then vest in the UDA. The Act makes no provision for the process whereby the Minister determines that land is required for urban development purposes, and has very limited mechanisms of redress for the original owners of such land. The Act provides that persons aggrieved by an order made under the Act are not entitled to any remedy, redress or relief in any court other than by way of compensation for damages. The UDA can be seen as a mechanism that facilitates re-centralisation due to its power to issue permits in respect of land vested in Local Authorities declared to be Development Areas. As a result of such declaration, land held by Local Authorities is subject to the UDA s ability to issue permits in respect of the land. 6 The Urban Development Authority Act also re-centralises power over land, by vesting land previously held by Local Authorities in the UDA. Section 15 of the Act provides that by publishing an order in the Gazette, the Minister may vest any land or interest in land held by a Local Authority in the UDA. The effect of this transfer of land rights to the UDA is to remove the power of Local Authorities to act in respect of such land. Following the tsunami disaster, the powers of local government have been curtailed by virtue of the UDA expanding its authority over land, in particular the ability to approve development activities in the coastal zone. The UDA has issued a Public Notice declaring that any Government Agency or any person is required to obtain prior approval of the UDA for any development activity undertaken within the said Special Control Zone [i.e. the coastal zone]. 7 The Notice goes on to note that the powers delegated to Local Authorities by the UDA in approving development activities within those areas have been temporarily suspended until further notice. 8 By virtue of the suspension of the delegated to exercise, perform and discharge powers, duties and functions corresponding to or similar to the powers, duties and functions exercised, performed and discharged by any such Council. 6 Section 8 of the Urban Development Authority (Amendment) Act No. 4 of 1982 adds sections 28A, 28B and 28C to the Urban Development Authority Act which detail the powers of the UDA in respect of permits over land declared to be Development Areas. 7 Ministry of Urban Development & Water Supply, Public Notice, published in the Daily News, 1 st January 2005, page Section 5 of the Urban Development Authority (Amendment) Act No. 4 of 1982 adds section 23(5) to the Urban Development Authority Act. Subsection 5 provides that the UDA may, in consultation with a Local Authority, delegate any of its powers, duties and functions relating to planning within a Development Area 7

8 duties of Local Authorities, the Notice has had the effect of re-centralising these functions in an agency of the central government, the UDA. While CPA appreciates that the suspension of Local Authority powers was done in response to an urgent situation (i.e. the perception that coastal construction was subject to a high level of disaster risk), there is the possibility that placing planning authority within a central government institution will mean that planning decisions will be less responsive to local needs Government Institutions There are many Line Ministries within the central government that deal with land and land-related issues. These include, but are not limited to, the Ministry of Agriculture, Livestock, Land, and Irrigation, the Ministry of Vanni Rehabilitation, the Ministry of Eastern Development, and the Ministry of Urban Development and Water Supply. The Ministry of Land itself has a number of departments within it, each specialising in specific issues, some of which overlap. This creates confusion and duplication of work. The Ministry of Land contains the following departments: the Land Commissioner, the Department of Land Settlement, the Land Use Policy and Planning Division, the Department of Land Settlement, the Survey Department and the Land Titling and Related Services Project. Land-related issues such as rehabilitation, reconstruction, housing, environment and planning are under the purview of other Ministries, Authorities and Departments. At the provincial and district levels one also finds Government Agents, land officers and divisional secretariats that work in land and land-related areas. The presence of so many actors, and the absence of a coherent structure causes problems in coordinating land and land-related policies. 9 The Thirteenth Amendment created the National Land Commission (NLC), although it is yet to be established. Under the Thirteenth Amendment, the NLC is responsible for the formulation of national policy with regard to the use of state land, and is to be composed of representatives from each of the Provincial Councils. The Thirteenth Amendment provides that the NLC will establish general norms with respect to the use of land, having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, and economic viability. The NLC will be responsible for formulation of the national policy, but must work in concert with Provincial Councils who are responsible for implementing programmes under the national policy. The NLC would therefore have overarching powers to formulate policies that affect the centre as well as the provinces. to an officer of a Local Authority. The officer shall exercise these powers, functions and duties under the direction, supervision and control of the UDA. 9 For a detailed discussion of the lack of coordination between provincial and district level institutions in land administration, see North East Housing Reconstruction Programme (NEHRP) Report on The Land Survey (East), presented to the North-East Provincial Council by Resources Development Consultants Ltd., 2004, at pages 14 to 16. 8

9 1.1.4 LTTE-Controlled Areas In the LTTE-controlled areas, the LTTE has its own set of laws, structures and courts that run parallel to the overarching framework for land and land use planning. In the LTTEcontrolled areas, the Head Office functions as the central office for all judicial institutions and co-ordinates the administrative duties of the courts. 10 Legislation is drafted by the legislative branch, and is then sent to the Committee for the Review of Legislation. Members of this committee include the officials in charge of political affairs, intelligence, finance, police, judicial administration, the research organisation of women, Chencholai orphanage, and refugee rehabilitation. 11 After reviewing legislation, the final draft is sent to the National Leader for approval. The LTTE has legislation covering a broad range of issues including dowry, national property and evidence, and is presently in the process of drafting legislation related to land. The LTTE has courts in LTTE-controlled areas in the Vanni, Batticaloa and Trincomalee. The courts work together with the Tamil Eelam Police to enforce LTTE laws. In the uncleared areas on the Eastern coast, both the courts administered by the government of Sri Lanka and the courts administered by the LTTE operate. This situation has created confusion among civilians regarding the effectiveness and jurisdiction of the judicial system New Institutional Structures Involved in Land In the aftermath of the tsunami, the Government of Sri Lanka established three task forces, the Task Force for Rescue and Relief (TAFRER), the Task Force to Rebuild the Nation (TAFREN) and the Task Force for Logistics and Law and Order (TAFLOL). The Government is currently in the process of drafting legislation to establish the Authority for Rebuilding the Nation (ARN) as the successor to TAFREN. While its powers over land-related issues have not been made public, there is little doubt it will at least have some policy influence over IDPs, resettlement and relocation. Indeed, in its Terms of Reference, TAFREN was directed to develop a national policy giving priority to inter alia the following land-related issues: housing, urban township development, water supply and drainage, fisheries, tourism and tourist resorts, and coast conservation and environmental protection. Given that the existing framework dealing with land already consists of numerous layers and actors, it is unclear what role the ARN will assume. In particular, it is unclear whether the ARN will have (i) the authority to coordinate the existing land actors, (ii) a more direct role in developing land policies and plans, or (iii) a more direct role in both developing and implementing policies and plans. 10 The Judicial System of Tamileelam, Structure, Function & Duties of Officials in Charge, Ibid. 9

10 Recommendations CPA recommends that: The Government undertake a review of the existing institutions exercising authority with respect to land and land use planning in order to determine whether the many ministries, departments, authorities and provincial and local authorities have overlapping functions which may lead to duplication. This review would be an opportunity to examine whether any of the existing structures have fallen into disuse or are mismanaged, and to make recommendations regarding their reform or restructuring. This review should result in a more efficient and effective framework. The NLC, as provided for in the Thirteenth Amendment should be established and be granted sufficient resources to carry out its mandate. While having overarching powers on formulating policies, the NLC should consult with Provincial Councils and Local Authorities to ensure responsiveness to local needs. To this end, a formal consultation and coordination mechanism should be established to ensure effective communication and cooperation amongst the NLC, Provincial Councils and Local Authorities in the formulation of policy. A programme of institutional strengthening and capacity building 12 should be undertaken throughout government structures with a view to realising the following core principles of good governance: equity, participation, pluralism, partnership, subsidiarity, transparency, accountability, effectiveness, responsiveness and sustainability. 13 The ARN should work through existing institutions such as Provincial Councils and Local Authorities. While CPA appreciates the importance of urgently addressing the after effects of the tsunami, a more responsive and sustainable reconstruction process would be one that works with Provincial Councils and Local Authorities rather than in usurpation of devolved authority. The ARN s mandate should be limited to the creation of a broad national policy framework for reconstruction and rehabilitation, and coordination and supervision of the national rehabilitation efforts A useful summary of capacity building measures is included in the Draft Mauritius Strategy for the further Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, International Meeting to Review the Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, January 2005, available online at 13 The Discussion Paper Governance: Institutional and Policy Frameworks for Risk Reduction prepared for the World Conference on Disaster Reduction held in Kobe, Japan from 18 to 22 January 2005 states that disaster risk reduction requires the integration of disaster risk considerations into sustainable development policies and development planning, together with the development of stronger institutions, mechanisms and community capacities that can systematically build resilience to natural hazards and disasters. 14 The Indian Government s approach has been to formulate a National Disaster Framework (a roadmap) covering institutional mechanisms, disaster prevention strategy, early warning system, disaster mitigation, preparedness and response and human resource development. The expected inputs, areas of intervention and agencies to be involved at the National, State and district levels have been identified and listed in the roadmap. This roadmap has been shared with all the State Governments and Union Territory Administrations. Ministries and Departments of Government of India, and the State Governments/UT 10

11 A formal consultation and coordination structure should be established to ensure effective communication, coordination and cooperation amongst the ARN, Provincial Councils and Local Authorities. The aid which has been pledged by donors in the wake of the tsunami disaster should be directed to a Special Reconstruction Fund. 15 A portion of the Special Reconstruction Fund should be devoted to capacity building of local, provincial and central government institutions. The Urban Development Projects (Special Provisions) Act should be revised with a view to formalising the appropriate considerations and the procedure whereby the Minister determines that land is required for urban development purposes to ensure transparency and foster public trust in the system. 1.2 National Land Policies Land policies also affect the overarching framework for coordinating land issues and land use planning. This section will examine the two draft national policies affecting land, the Draft National Land Policy and the Draft National Land Use Policy, as well as the National Involuntary Resettlement Policy (NIRP) Draft National Land Policy Due to administrative delays, the Draft National Land Policy, which was to have been finalized sometime in early 2005, remains in draft form. The National Land Policy will likely be further delayed by the need to consider the effects of the tsunami on the policy. The primary focus of the draft National Land Policy is to lay out the overarching policy of the Government with regards to land. Some of the key points in the draft policy are: 16 Identification of land resources and mapping of lands; Land distribution for activities in industrial, residential, commercial, social and religious areas; Land conservation; Land development by way of granting leases; Administrations have been advised to develop their respective roadmaps taking the national roadmap as a broad guideline. See Disaster Management in India: A Status Report, prepared by the Government of India, Ministry of Home Affairs, National Disaster Management Division, August 2004, available online at 15 Please see the Memorandum submitted by CPA to TAFREN for additional recommendations regarding the establishment and functioning of the Special Reconstruction Fund which CPA proposes as a replacement for the ad hoc arrangements put in place in the immediate aftermath of the tsunami whereby funds were placed in the President s Fund. 16 CPA has not had direct access to the Draft National Land Policy, and therefore any observations are based upon secondary sources. 11

12 Land acquisition; Institutional arrangements (The policy specifies that land management will come under the National Land Commission created by the Thirteenth Amendment and that line ministries and authorities will come under the purview of the NLC. In addition to management, the NLC will have to coordinate among the ministries and monitor.); Legal arrangements; and The establishment of a special court for land issues Draft National Land Use Policy As with the Draft National Land Policy, the Draft National Land Use Policy, remains in draft form due to administrative delays. Similarly, the National Land Use Policy will also likely be further delayed by the need to consider the effects of the tsunami on any proposed policy. The Draft National Land Use Policy was intended to provide a framework for the best possible use of land, and sought to achieve protection, conservation and sustainable use of land and other resources. The draft policy would have provided a framework detailing the responsibilities of institutions dealing with land and land use, thereby simplifying and coordinating the complicated and confusing collection of institutions engaged in the development, implementation and supervision of land and land use policies described above. The draft policy is divided into three themes: Agriculture and Food Security, Land and the People, and Land and Nature. The draft policy encourages private ownership of land and suggests that land management be decentralised to achieve balanced regional development. It further suggests that the legal system be reviewed, and reforms introduced to integrate the administrative structure related to land issues. The draft policy also recommends that the NLC be established in accordance with the provisions of the Thirteenth Amendment and that all line ministries come under the purview of the NLC. In addition, the draft policy recommends that the NLC have powers over both state and private lands. Other proposals in the draft policy include: removing the restrictions stipulated in the Land Development Ordinance (LDO) and Land Grants Special Provisions Law, the recognition of gender equity in relation to land, and land use policies that minimise environmental damage National Involuntary Resettlement Policy (NIRP) This policy establishes a framework for resettlement planning and implementation for people who are affected by the acquisition of land by the state for development purposes and is currently being used for resettlement planning. This policy ensures that a Resettlement Action Plan is prepared when 20 or more families are affected. If less than 20 families are affected, a less detailed plan is prepared. The NIRP: 12

13 seeks to minimize and mitigate the negative impacts of involuntary resettlement; compensates people adversely affected by development projects and resettles them in identified areas; raises awareness on the process available for the redress of grievances; states that resettlement should be planned and implemented with full participation of the provincial and local authorities; and makes the resettlement process consultative, transparent and accountable. The policy also states that gender and other equity concerns be respected in resettlement, and that vulnerable groups be identified and given appropriate assistance. Recommendations CPA makes the following recommendations with respect to national land and land use policies: The Government should make draft land policies publicly available in order to permit interested parties to register their comments. CPA believes the process of formulating national policy should be a transparent and consultative process whereby the views of all stakeholders and interested parties are taken into consideration. While supporting the proposed establishment of the NLC in accordance with the Constitution, CPA recommends that the National Land and Land Use Policies be used to decentralise power further. This may be achieved by ensuring that the NLC s role is limited to one of formulating broad statements of national policy, leaving the formulation, implementation and evaluation of regional policies, plans and projects to Provincial Councils and Local Authorities. Within the context of the ARN s broad national policy framework (as proposed above), each Provincial Council should formulate an action plan responsive to their particular needs. This provincial action plan should result from inclusive public consultation. Implementation should be executed by Provincial Councils with Local Authorities playing a key role. On the basis of lessons learned from the tsunami disaster, stronger emphasis should be placed on the development of plans and policies that reduce risks and hazards and overcome the shortcomings of current practices. 17 Land use policy can be a vital tool in disaster reduction. 18 This must be a coordinated effort whereby government and relevant stakeholders should map 17 See, for example, the Indian Government s strategy for Disaster Management, available online at The Draft Mauritius Strategy for the further Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, International Meeting to Review the Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, January 2005, available online at also contains policy considerations on disaster management strategies, land policy and land use planning, and the preservation of coastal and marine resources which would be useful in developing policy in Sri Lanka. 13

14 areas of extreme risk, strengthen existing buildings, protect infrastructure, set standards of construction through building codes and enforce compliance with these standards. The policies should take into consideration the importance of disaster management and ensure that responsibility for disaster management is decentralized in order to ensure its responsiveness. The policies should foster coordination and partnerships amongst the private and public sectors as well as other stakeholders, thereby reducing duplication of work. In the post tsunami reconstruction phase, the NIRP be used to ensure that resettlement planning is conducted in a transparent, consultative and accountable manner, and is responsive to the needs of affected communities. 18 The Hyogo Framework for Action that was adopted at the World Conference on Disaster Reduction, identified priorities for action in connection with good governance and disaster reduction. CPA recommends that any national policy be developed with reference to the Hyogo Framework. 14

15 II. THE LEGAL AND POLICY FRAMEWORK FOR LAND OCCUPATION AND OWNERSHIP 2.1 State Land Successive governments have used state land for alienation and resettlement of people. CPA has highlighted certain provisions in the existing legislation that deal with land alienation and areas that need to be amended in light of the ethnic conflict and tsunami Land Development Ordinance No.19 of 1935 State land can be alienated and development regulated through the Land Development Ordinance. The Ordinance also provides for the establishment of a Land Commission and provides for the implementation of the provisions of the Act through the Commissioner of Land. Any person may by application, to the Government Agent (GA), request land for development. Under this Ordinance, state land is alienated by a permit issued to all successful applicants. These permits are subject to several conditions, and may be cancelled where there is failure to comply with such conditions. A permit may be converted to a grant if the conditions specified by the permit are fulfilled. 19 Land acquired by way of grant cannot be cancelled by the state except pursuant to the procedure specified under the Land Acquisition Act. 20 A grant is conditional and the conditions attached to the grant are binding on the original owner as well as all owners thereafter who acquire title to the land. 21 Lands alienated by grant or permit cannot be sold or seized, even by court order. 22 Section 48A (1) of the Ordinance states that state land alienated under a permit or grant is succeeded by the spouse on the death of the permit/grant holder, irrespective of whether the spouse was nominated as the successor or not. 23 However if the spouse was not nominated as the successor, and upon remarriage, the land reverts to the person nominated as the successor by the permit holder. If no person was nominated, the land 19 A permit may be converted to a grant after the permit holder fulfils the criteria stated in the permit, namely develops the land occupied to the satisfaction of the GA, within the time specified in the permit, erects upon the land a house, toilet and fence and maintains them in a satisfactory manner, if the land is for cultivation, clears and cultivates land as set out in the schedule of the permit, resides upon the land, for at least 3 years if it is farm land and at least 1 year if it is for housing, adopts measures for soil conservation of the land, is a citizen of the land. Centre for Policy Alternatives, Land and Property Rights of Internally Displaced Persons, February 2003 at page Ibid at page Every grant of land is registered without a fee. Land alienated by grant has to be surveyed. 22 There are exceptions, for example, mortgage and bail. 23 Section 48A. 15

16 would devolve according to the order of preference specified by the Third Schedule to the law. 24 The schedule gives first preference to sons over daughter. The schedule also states that the older descendants are preferred over younger when there are more than one descendant in any group. A spouse who has inherited the land according to section 48 A(1) is bound by the conditions attached to the land during his/her lifetime. Such a spouse cannot dispose of the land nor nominate a successor upon his/her death. However such terms and conditions do not apply to a spouse that was nominated as the successor by the permit holder. The law ensures that land alienated under this Ordinance is kept within the family. First preference is given to the spouse irrespective of whether he/she was nominated as the successor to the land. However, when the state is called upon to decide the successor, first preference is given to sons. 25 There are several instances where the law shows a preference towards men. A proposal to reform this section of the law has been formulated and presented to Cabinet for approval. The proposal suggests that nominated groups under the Third Schedule to the law should read as children, parents and siblings. 26 The proposal does not draw a distinction between sons and daughters. Although the proposed reforms eliminate the prima facie discrimination based on gender, it does not eradicate all problems attached to this section. For instance, the District Secretary still has to decide a successor, where a successor has not been nominated by the permit holder Land Grants (Special Provisions) Act No. 43 of 1979 The Land Grants (Special Provisions) Act enables the government to alienate land to the landless through the Land Reform Commission. 27 Under this Act the President may transfer state land, free of charge to any citizen of Sri Lanka over 18 years of age. The President shall consider the fact whether the transferee does not own any land, the level of income of the family and the capacity of the transferee to develop the land. Any person to whom state land is granted or any person who is a grantee under this Act may nominate a successor to the land. If the owner of the land or the grantee has failed to nominate a successor, land will devolve on his/her surviving spouse, and failing which it shall be devolved according to the order of preference specified in the Act. Similar to the LDO this act too gives preference to males relatives over female relatives. For instance sons are preferred to daughters. CPA recommends that the law be amended so that there is no preference based on gender. The Land Commissioner has issued a circular requesting the relevant authorities not to regularize any encroachments that took place after the 15 th June This has caused hardship among families who cannot obtain any documentation for the land they occupy. With time and with the expansion of families, land occupied by the family may not be sufficient and as a result people will encroach on state land. 24 Table to the Third Schedule. 25 Third Schedule to the Ordinance. 26 This law has not been changed. 27 Land Reform Commission was established by the Land Reform Law No. 1 of

17 Recommendations CPA recommends that: The restrictions placed on permits be reviewed. Sons and daughters be treated equally. Joint ownership be recognized Testators have the option of nominating more than one person as successor. The state survey alienable land and regularise land as the need arises. This can be done on a case by case basis. 2.2 Private Land Land Acquisition Act No. 9 of 1950 Acquisition of land for public purposes can be done through the Land Acquisition Act No. 9 of Where the Minister is of the opinion that land is suitable for a public purpose, the Minister may direct the district officer to give notice to acquire such land. The Act specifies the manner and procedure by which private land may be acquired. 28 Recommendations CPA makes the following recommendations: The establishment of guidelines on criteria to be used for identification of land. This should be done without any consideration towards political and commercial gain. The establishment of guidelines on methods of calculating compensation The establishment of guidelines on procedures to be followed when relocating displaced people That the process of acquiring land and relocating of people be transparent and accountable, with an inclusive consultation process involving those people directly affected by such measures. 28 Media report state that in light of the tsunami disaster, Government has set in motion measures to acquire private land in Galle, Matara and Hambantota. These lands are meant to be used for housing projects for Tsunami victims. According to reports, acquisition of land in these areas will be cost approximately 680 million rupees, with an acre of land being valued at 2.5-3million. Irida Divaina 23 rd January 2005 page 1, The Island 24 th January 2005 page 1. 17

18 2.3 The Coastal Zone As a result of the tsunami disaster, the coastal zone has been an area of intense media and policy focus. There is uncertainty as to the exact extent of the coastal zone, and in the section that follows, CPA sets out the guidelines issued under the Coast Conservation Act, and by the National Physical Planning Department and the UDA Coast Conservation Act Under the Coast Conservation Act No. 57 of 1981, as amended, the Coastal Zone is an area lying within a limit three hundred meters landwards of the Mean High Water Line (which means plus 0.6 meters from the Mean Sea Level) and a limit of two kilometres seawards of the Mean Low Water Line (which means minus 0.6 metres from the Mean Sea Level). According to section 31(1) of the Act, no one is allowed to erect or construct any unauthorised structure, house, hut, shed or other building on any part of the Coastal Zone. The Act further states that a Coastal Zone Management Plan should be submitted by the Director of the Coast Conservation Department (CCD) to the CCD Advisory Council and the Minister, who should make the plan available for public scrutiny. Upon the plan s approval by Cabinet, the Minister shall cause the Plan to be published in the Gazette. The Plan will be operational on the date of such publication or on a later date as may be specified. As a result of the tsunami disaster, there has been discussion as to revamping the coastal zone. The CCD has stated that no construction should take place in the first 100 metres landwards from the mean high tide line of the sea in the Southern and Western coasts and that construction should not take place in the first 200 metres landwards from the mean high tide line of the sea in the North and East coasts. There has been no public justification given for variances in the width of the coastal zone. Recent media reports have indicated only that the difference is based on practical reasons National Physical Planning Department Guidelines The National Physical Planning Department of the Ministry of Urban Development and Water Supply has issued guidelines for planning and declared 1kilometre in width from the mean high water mark of the seas as a vulnerable zone. 30 The zone has been divided into three strips as follows: Strip One will be 100m, except for 200m for the Eastern Province and 150m wide for areas specifically mentioned in the document Sunday Times, 23 rd January 2005, page Physical Planning Guidelines and Project Proposals for the Vulnerable Coastal Zone of Sri Lanka, January The areas mentioned are: 18

19 Strip Two will be 200m from the landward boundary of Strip One. Strip Three will be 700m from the landward boundary of Strip Two. These guidelines specify the purposes for which the different strips may be used. No new structures will be permitted on strip one. Exceptions would be port and harbour related activities, and lighthouses. The guidelines provide that exceptions would also be made for historic monuments and tourism related structures may be permitted to remain and that too on a case-by-case consideration. It is unclear who will decide which tourism related structures can remain and on what basis that decision will be made. In the event that the NPPD guidelines are enforced, CPA recommends that formal guidelines be established to ensure that any such decision is made in a transparent and consultative manner, with regard to political reasons. Strip two will include things such as historical monuments and buildings, harbour and port related activities, hotels and restaurants, fishing landing sites and ancillary facilities and fishing communities in clusters in appropriate locations. Agriculture will be encouraged in this strip. It has been suggested that the coastal railway line and the highway line should be relocated to Strip three. Strip three will include activities that have been relocated from the other two strips in addition to other activities that are needed for settlement and urban areas. The guidelines further state that all town expansions shall be directed away from the coast, that urban development plans shall be guided by urban design guidelines, all towns should have sewerage schemes, waste management systems and storm water drainage schemes. There should also be special provisions to enhance and protect the environment Urban Development Authority Guidelines In a public notice dated 17 th January 2005, the UDA states that the one kilometre wide stretch of land from the mean high tide line of the sea declared an Urban Development Area by the Gazette Extra Ordinary No. 223/16 dated 17 th December 1982 should be developed into two zones subject to the determination of the Coast Conservation Department. The coastal belt for Zone 1 will fall within the western half of the country from Point Pedro to Point Dondra while the coastal belt for Zone 2 will fall within the Koholankala to Parawadaragala (Yala National Park) Tambiluvil to 228 mile post Cemetary Periya Kallar to Ondachchimunai Kallady to Bar Light House, Batticaloa Pulsiri Point to Foul Point, Kevuliya Fort Frederick to Alles Garden Kokilaikanni to Thumpalai Weeramandimunai to Sinnativu Periya Aru to Mantai Mantai to Kala Oya River Mouth (Wilpattu National Park) 19