December 2010 Vietnam: GMS Sustainable Tourism Development Project Prepared by Quang Binh Provincial Implementation Unit for the Asian Development Bank.
CURRENCY EQUIVALENTS (as of 17 August 2010) Currency unit VND VND1.00 = $0.000054 $1.00 = VND18,544 ADB AH AP CPC DMS ILO DPC GOV HH IME MARD MCST MOLISA PCU PIB PIU PPC RC RCS RPF STDP VICA ABBREVIATIONS Asian Development Bank affected household affected person Communal people s committee detailed measurement survey inventory of losses district people s committee Government of Vietnam household independent monitoring expert Ministry of Agriculture and Rural Development Ministry of Culture, Sports and Tourism Ministry of Labor, Invalids and Social Affairs project coordination unit public information book project implementation unit provincial people committee compensation, assistance and resettlement committee replacement survey resettlement policy framework GMS Sustainable Tourism Development Project VICA International Consultants, Ltd WEIGHTS AND MEASURES kg (kilogram) 1,000 grams GLOSSARY Project affected person includes any person or entity or organization affected by the Project, who, on account of the involuntary acquisition of assets in support of the implementation of the Project, would have their (i) standard of living adversely affected; (ii) right, title or interest in all or any part of a house and buildings, land (including residential. commercial, agricultural, plantations, forest and grazing land) water resources, fish ponds, communal fishing grounds, annual or perennial crops and trees, or any other moveable or fixed assets acquired or possessed, in full or in part, permanently or temporarily; and (iii) business, profession, work or source of income and
livelihood lost partly or totally, permanently or temporarily. For households, affected household consists of all members living under one roof and act as an economic unit, who were adversely affected by project or by the project component. Cut-off date Day of the legal right to compensation for assets affected by the head works, construction road of key works, water reservoirs, main canals and water channels of resettlement plan will be the ending day of the inventory, survey and measurement after the detailed design of this component. Affected people and local authorities will be notified of the date of the cut-off date to receive compensation for each category of the project. Anyone moving into project areas after this date will not receive compensation and support from the project. Eligibility Any person, on the settled cut-off date, living in areas affected by head works, reservoirs, main canals and water channels, or any item or portion of the primary projects: (i) livelihood affected, (ii) rights, eligibilities or benefits on housing, land (including residential land, business land, agricultural land or pasture land) or any fixed asset or assets that were misappropriated or used wholly or partly, temporarily or permanently, or (iii) business, occupation, work, working location, residence which are adversely affected. Compensation Is the value for payment in cash or in kind to offset losses of land, house, income and other property caused by the project. All cases of compensation are based on the principle of replacement price which refer to the asset valuation method for compensation under the current market price, plus any transaction costs such as administrative fees, taxes, fee and ownership registration. Benefits Include measures of compensation, income restoration assistance, relocation support, relocation assistance and livelihood restoration support to help affected people to restore economic and social bases. Land acquisition The process of an individual, household, business or private organization that is requested by a State-owned agency to give a portion or all of the land area they owned or occupied for public purposes will be compensated with replacement cost equivalent to the property affected. Livelihood restoration The support for those affected by the loss of productive land, income, employment or sources of living, in order to supplement payment of compensation for the land area acquired, at least to the full living standard and quality before the project. Replacement cost the method of valuation of land, structures and other properties such as: (i) Agricultural land and fishpond based on: a) market price before the project or before the move, whichever is higher, the land has the same ability to produce or use land around the affected area, plus b) land improvement costs be compensated to get the same soil quality as the status of the
land recovered, and c) the transaction costs and other registration fees. (ii) Tenure land: using a conversion price which equals to a) the market price before moving to the land of similar size and utilization purpose, with infrastructure and services similar or better in the area surrounding the affected area, and b) the transaction costs and other registration fees. (iii) Homes and other structures: conversion price equal to a) the current market price for new construction materials to build a new structure with area and quality similar or better than the affected structure, or to repair an affected part of the structure, combined with b) the cost of transporting building materials to the site; c) the costs for labors and contractors, and, d) the transaction costs and fees and other registration. When deciding the conversion price for the structure, not deductible expenses for a) depreciation of assets, b) the value of the acquired materials, or c) the value of the benefits gained from project. (iv) Annual crops: conversion price for annual crops is equivalent to an average output of previous three years multiplied by current market prices for agricultural products at the time of compensation. (v) Perennial plant: Prices converted to perennial crops is equivalent to the market price at the present time in terms of type of plant, plant age and productive value of the plants, including the output value will be lost in future of the plants. (vi) Other assets (community, cultural, aesthetic): the compensation will be calculated on the basis of market value at the time of compensation for the repairing and / or replacement of property, or, relocation expenses. For example, the cost of moving the graves would include all costs for exhuming and moving the grave and build new gravels with the same size, and other reasonable costs. Resettlement Refers to all measures taken by the Project proponents to mitigate any and all adverse social impacts of the Project on the APs, including compensation for lost assets and incomes, and the provision of other entitlements, income restoration assistance, and relocation as needed. Resettlement plan an action plan with identified timeline and budget to set up a strategy to compensate and resettle, targets, benefits, actions, responsibilities, monitoring and evaluation. Resettlement plans must be prepared and approved prior to appraisal loan for the project. Severely affected person Are all affected persons (i) lose 10% or more of their productive assets, such as agriculture/aquaculture land holding, and/or (ii) physically displaced from housing due to the remaining land area is sufficient for rehousing. Vulnerable group Are distinct groups of people who might suffer disproportionately or face the risk of being further marginalized by the effects of resettlement and specifically include: (i) headed by women and independents, (ii) disabled householders, (iii) households living below the poverty threshold, (iv) landless household, (v) the landless, and (vi)
indigenous peoples (i) (ii) NOTES The fiscal year (FY) of the Government of Vietnam ends on 31 December. FY before a calendar year denotes the year in which the fiscal year ends, e.g., FY2010 ends on 31 December 2010. In this report, "$" refers to US dollars. This resettlement plan is a document of the borrower. The views expressed herein do not necessarily represent those of ADB's Board of Directors, Management, or staff, and may be preliminary in nature. Your attention is directed to the terms of use section of this website. In preparing any country program or strategy, financing any project, or by making any designation of or reference to a particular territory or geographic area in this document, the Asian Development Bank does not intend to make any judgments as to the legal or other status of any territory or area.
Ministry of Culture, Sports and Tourism GMS SUSTAINABLE TOURISM DEVELOPMENT PROJECT ADB LOAN 2457-VIE RESETTLEMENT PLAN Submitted to: NATIONAL PROJECT COORDINATION UNIT Block 4A, Kim Lien Hotel, 7 Dao Duy Anh Strett, Hanoi, Vietnam Prepared by: Quang Binh Provincial Implementation Unit December, 2010
TABLE OF CONTENTS I. INTRODUCTION... 8 I.1. Project background... 8 I.2. Sub-project in Quang Binh province... 8 II. SCOPE OF LAND ACCQUISITION... 10 II.1. Affected household... 10 II.2. Affected land... 11 III. SOCIO-ECONOMIC INFORMATION... 12 III.1. Source of data... 12 III.1.1. General information on the project area... 12 III.2. Socio-eConomic situation of the affected household... 14 III.2.1. Age structure and education level of the AH... 14 III.2.2. Economic activity... 14 III.3. Land, house and facilities... 15 III.4. Gender issues... 15 III.4.1. Working division among the family members... 15 III.4.2. Names on the land use certificate... 15 IV. PROJECT PRINCIPLES... 15 V. PROJECT LEGAL/POLICY FRAMEWORKS, ELIGIBILITY AND ENTITLEMENTS... 18 V.1. Project legal/policy frameworks... 18 V.1.1. Relevant Vietnamese legislations... 18 V.1.2. ADB s policies... 21 V.1.3. Resolving inconsistencies on Involuntary Resettlement... 23 V.2. Eligibility and entitlements of the project affected households... 25 V.3. Relocation and income restoration strategy... 26 VI. PUBLIC CONSULTATION AND DISCLOSURE... 27 VI.1. The objectives of public consultation and information disclosure... 27 VI.2. Implementation of consultation and information disclosure... 27 VII. GRIEVANCE REDRESS... 28 VII.1. Complaint and lodging complaints... 28 VII.2. Method of lodging complaints... 28 VII.3. Vietnamese regulatory process... 28 VII.4. Proposed project procedure... 28 VII.5. Fees... 29 VIII. IMPLEMENTATION ARRANGEMENT... 30 VIII.1. Ministry of culture, sports and tourism (mcst)... 30 Page 6
VIII.2. Quang Binh provincial people s committee... 30 VIII.3. Bo Trach district people s committee... 31 VIII.4. Phuc trach commune people s committee... 31 VIII.5. Compensation, assistance and resettlement committee (RC)... 31 VIII.6. Independent monitoring expert... 32 VIII.7. Resettlement monitoring consultant... 32 IX. MONITORING AND SUPERVISION... 33 IX.1. Internal monitoring... 33 IX.2. Independent monitoring... 34 X. COMPENSATION COST... 38 X.1. Replacement cost survey... 38 X.1.1. Approach and Methodology... 38 X.1.2. Result of Survey... 38 X.2. Source of funds... 39 X.3. Total budget... 39 XI. IMPLEMENTATION SCHEDULE... 40 XI.1. Compensation and assistance payment procedures... 40 XI.2. Implementation projection... 40 APPENDIX 1: LIST OF PERSONS AFFECTED BY THE LAND ACCQUISITION OF THE PROJECT... 42 APPENDIX 2: DMS... 43 TABLES Table 1. Scope of land acquisition... 11 Table 2. Affected land area, crops and trees... 11 Table 3. Main source of income (%)... 12 Table 4: Average income rate in 2008 (VND)... 13 Table 5. Education level of the head of the household... 13 Table 6.Land use situation... 14 Table 7. Gaps between National Laws and ADB Policies... 23 Table 8.Project Entitlement Matrix... 25 Table 9. Consultation... 27 Table 10: Criteria for Monitoring and Evaluation... 33 Table 11. External Monitoring Indicators, Methods and Schedule... 35 Table 12: Compensation cost... 39 Table 13. Land acquisition and compensation plan... 40 Page 7
I. INTRODUCTION I.1. PROJECT BACKGROUND 1. The GMS Sustainable Tourism Development Project 1 (STDP) in Viet Nam was approved by the Asian Development Bank (ADB) on 15 October 2008 for $11.11 million (ADB $ 10 million; counterpart funds $1.11 million). The project provinces are selected based on their tourism potentials, poverty rate and geological locations along the East-West economic corridor in the Great Mekong Sub-region. The project takes effect since 30 March 2009 and finishes on 31 December 2013. The project impact is the development of a sustainable, culturally and environmentally sound pro-poor tourism approach for the GMS and the preservation of natural and cultural heritage. The project outcome is sustainable tourism development that creates livelihood opportunities for the poor. In Viet Nam, the project includes 5 provinces 2 and in Lao PDR 9 provinces 3. There are 5 planned outputs: (i) sustainable tourism development that protects the environment and cultural heritage is developed, (ii) pro-poor community-based tourism and supply-chain tourism demonstration projects are operational, (iii) GMS transportation corridors are developed into subregional tourism corridors, (iv) human resource capacity of public and private tourism stakeholders are improved, and (v) efficient project management services are delivered. 2. The Ministry of Culture, Sport and Tourism (MCST) is the executing agency (EA) in Viet Nam. MCST has established a National Project (PCU) and appointed a Project Director. The project director will be supported by a deputy director and five support staff, responsible for accounting, monitoring and evaluation, environment, natural heritage and culture, gender and other social issues. PCU is responsible for (i) project coordination, (ii) selecting and managing the TA, which includes independent resettlement monitoring consultant, (iii) submitting all data necessary for timely auditing and preparing financial statements of the audited project accounts to ADB, (iv) project monitoring and evaluation, (v) synthesizing reports to be submitted to ADB and GOV, and (vi) coordinating with other PCUs, the Coordination Office of the Mekong Tourism and national tourism organizations of the countries in the Mekong Sub-region. PCU will be supported by the international and local consultants. 3. One Provincial Project Implementation Unit is established in each project province which is responsible for implementing, coordinating, monitoring and reporting of project activities at provincial level under the direction of the PCU. The PIU is responsible for procurement, each PIU appoints one provincial project director, one project manager and five project staff who are in charge of different project aspects: accounting, monitoring and evaluation, environment, natural heritage and culture, gender and other issues. One provincial project steering committee is established in each project province representing stakeholder agencies in natural heritage and culture, urban environment, public work, transportation and district authorities. At communal level, community tourism groups are established for each sub-project. I.2. SUB-PROJECT IN QUANG BINH PROVINCE 4. This Resettlement Plan (RP) is prepared for the sub-project under the Output 2 for Phong Nha Ke Bang National Park in Quang Binh province. This subproject will support the (i) Construction of Public Amenities at Sister s Cave, (ii) construction of Ha Tinh Langur 1 Loan 2547-VIE; Grant 0117-LAO 2 Bac Kan, Cao Bang, Quang Binh, Quang Tri, and Thua Tien Hue 3 Bokeo, Champassak, Houaphanh, Luang Namtha, Oudomxay, Saravanh, Savannakhet; Vientiane Province and Xayaboury Page 8
viewing area, (iii) construction of Chay Lap boatlanding, (iv) construction of infrastructure for community based tourism in Chay Lap village (v) improving Phong Nha and Tien Son (Fairy) caves, (vi) Solid waste disposal Improvements, and (vii) construction of Botanical Garden. 5. According to the Paragraph 6, item (iii) there is no resettlement required, only an area of 900m2 of land in the boatlanding site in Chay Lap hamlet, Phuc Trach Commune, Bo Trach District. At the presence, this land area is the productive land owned by a family in Chay Lap hamlet which accounts for 11.5% of the total area owned by the household of 7,847m 2. The compensation will be made based on the market price, the project will support the livelihood transition, and, at the request of the affected household, they will be prioritized to get a job at the ticket and souvenir kiosk. The project will also ensure the easy access to the river bank for the fishery families in the hamlet. 6. According to the ADB criteria, this family is regarded as severely affected household who needs to be supported for rehabilitation. A Resettlement Plan will be prepared for this sub-project. The project will be carried out land acquisition and property on land to construct a boat landing, with concrete stairs and embankment system, the ticket and souvenir products on a land area of about 900 m2. The proposed infrastructure upgrading include: compensating and land allocating for construction of parking lot, the new trading center for cultural exchange. 7. This project will also apply the ADB s social safeguards and other relevant policies (Involuntary Resettlement (1995) based on the Handbook for involuntary Resettlement (OM/F2, 2006 and other relevant ADB s policies / guidelines such as: Gender (1998), Indigenous Peoples (1998), Accountability (2003), Public Information (2005), and integrating Social Aspects in the ADB s activities (2007)) together with the policies of the Government of Vietnam (GOV) on land acquisition, compensation, assistance and resettlement (the Land Law 2003; Decree No. 197 / 2004/ND-CP; Decree No. 84/2007/ND-CP; Decree No. 69/2009/ND-CP and other relevant Circulars to guide the implementation of this Decree). 8. The Government of Vietnam and ADB has approved / adopted the Resettlement policy of this Project and the Resettlement Plan (RP) for sub-project in Quang Binh province. In order to meet the requirements of the ADB in the social safeguard policy and to update the rate of project progress, Quang Binh PIU and the resettlement consultant of the VICA International Consultants, Ltd (VICA) has updated the existing RP. Page 9
Figure 1: Project area map Source: Feasibility Study Report II. SCOPE OF LAND ACCQUISITION II.1. AFFECTED HOUSEHOLD 9. As a result of the Detailed Measurement Survey (DMS) conducted by the District Compensation and Resettlement Committee (RC) and Quang Binh PIU, there is only 01 household whose 900m2 of productive land will be acquired, equivalent to 11.5% of the total productive land area, no other affected household and no household has to be resettled. As such the actual implementation of this subproject hardly causes impacts on the people in the hamlet. At the request of the ADB s Social Safeguard Policy, Quang Binh PIU will prepare a short Resettlement Plan to ensure that the project comply with the ADB s policy on social safeguard. Page 10
Business Income Dong/month Structure (m 2 ) Land (m 2 ) Other Fruit trees % of totalland Holding Plan-tation/agriculture Land (m 2 ) ResidentialLand (m 2 ) Village Female Household Head (Y/N) Minority Ethnic Group Poor 4 (Y/N) No. People in HH (# male, #female) Sex Affected Person Name Resettlement Plan Table 1. Scope of land acquisition Project site Estimated Land Acquisition (m2) Affected Persons Affected population Households to be relocated APs losing 10% or more of productive assets Other Impacts Boatlanding and ticket and souvenir products kiosk 900 1 household 8 0 1 household Project will ensure that access to the river is protected. Source: Updated DMS/ILO results prepared by RC and Quang Binh PIU, August 2010 II.2. AFFECTED LAND 10. The results from DMS/ILO conducted by Quang Binh PIU show that the recovery of land area requires 900m2 in total area of 7,847m2 of a household with eight people in Chay Lap hamlet, Phuc Trach commune, Bo Trach district, Quang Binh Province, in which the household lost 11.5% of productive land (growing peanut at the present), the household doesn t have to resettle and rehousing. Table 2. Affected land area, crops and trees Affected Person Information Affected Land permanent impacts Trees (#) Temporary Impacts Nguy en Van Ha Male 8 (4 male, 4 femal e) No (ave. income per capita 298,000 Dong/ Month) No (Kin h) No Chay Lap 0 900 11,5 % 0 0 0 0 0 Source: Updated DMS/ILO results prepared by RC and Quang Binh PIU, August 2010 4 Assessed using MOLISA rural poverty line 2006-2010 of 200,000 VND/capita/month and the average per capita income in the village of 190,000 VND/person/month. Page 11
Monthly average (1000 VND/person/month Annual average (1000VND/HH/year) Monthly average (1000VND/HH/ month) Business (inside and outside village) Forestry Live stock Raising/catching fish Cultivation Resettlement Plan III. SOCIO-ECONOMIC INFORMATION III.1. SOURCE OF DATA 11. The socio-economic survey was carried out in December 2010 in Chay Lap hamlet, Phuc Trach commune, Bo Trach district, Quang Binh province. The economic analysis was conducted to identify issues related to compensation and site clearance to serve as the basis for monitoring and evaluating the ability to restore the living condition of the APs. 12. Quang Binh PIU and Resettlement Consultant conducted a socio-economic survey (SES) to collect information on affected households. The purpose of SES is to provide basic information on households affected by the construction activities of the project to assess the impact of land acquisition, ensuring all the benefits proposed are appropriate and are integrated in the design of the income restoration program and the monitoring of land acquisition activity. After collecting information, Resettlement Consultant processed the data and analyzed the data to set up a database on the APs and the people in Chay Lap hamlet to make a basis for determining appropriate entitlements for the APs. The socio-economic data from the survey have also been integrated into this Resettlement Plan to facilitate the monitoring and evaluation process of implementing land acquisition compensation and rehabilitation of the affected household in the time to come. 13. Socio-economic data of the community living in the area having land acquisition activities of the project were collected to assist the assess the socio-economic conditions of affected households, such as i) the characteristics of socio-economic and local people as well as other information about the heads of the household; ii) living conditions of the affected households; iii) the sources of income for the households; iv) income and poverty; v) property ownership. III.1.1. General information on the project area 14. Chay Lap hamlet locates in the buffer zone adjcenting to the eastward of the National Park. The hamlet situates on the bank of Trooc River Trooc crossing with Phong Nha cave at the 3km to the southeast. The hamlet has 183 households with a total population of around 1,000 people. During the socio-economic survey in December 2010, there were 19 households being sampled to survey. The results are summarized in the table below: Table 3. Main source of income (%) 30.7 11.2 19.1 7.8 22.9 2,135. 5 25,626. 4 386 Source: Socio-economic survey conducted by Quang Binh PIU December 2010 15. The above Table shows that the main source of income of the villagers was from agricultural activities which accounts for 30.7% of the main income, the seasonal employment account for a high proportion of the income structure of the population (22.9%). Page 12
16. Comparing the data on the average income rate in the whole Quang Binh province (data of the year 2008), it is seen that the income level in the hamlet is much lower than the income levels across the province. Table 4: Average income rate in 2008 (VND) Whole Quang Binh province 695,000 Rural area 635,000 Source: Statistic book of Quang Binh Province, 2009 17. National poverty rate as issued by the Ministry of Labor, Invalids and Social Affairs (MOLISA) for the rural areas in the period 2005-2010 is 200,000 VND per person per month. In Chay Lap village, according to the results of the socio-economic survey of Quang Binh PIU, the average of income rate of one person per month is 386,000 VND. According to the MOLISA s poverty line, the income rate in this hamlet is above the line and therefore no surveyed households are determined as poor households. However, it should be noted that the criteria for evaluating the poverty level in the period 2005-2010 was issued under Decision No. 170/2005/QDD-TTg July 8, 2005 of the Prime Minister was based on the basic expenditure needs of one household at the time of 5 years ago, however the expenditure demand is dependent on the price factors, the Consumer Price Index (CPI) since the enforcement of the poverty line is for period 2006 to 2010 by the end of 2010 has increased by 50%; the minimum wage from 10 January 2005 until now has been adjusted over 4 times, from 350,000 VND to 730,000 VND, equivalent to 2.08 times to keep pace with increase in the CPI, however, the poverty rate has not been adjusted since 2005. At the present, MOLISA is now planning to conduct a survey on poor households nationwide, and the applied poverty rate is what expected to apply for new poverty line for period 2011-2015, which is expected to apply poverty line of 400,000 VND / person / month for rural areas in Vietnam 5. Assuming that the new poverty line is approved by the Prime Minister for period 2011-2015, and then the average income of Chay Lap hamlet is likely to be below the threshold. Table 5. Education level of the head of the household Education level of the head of the household (%) Primary school Lower Secondary School Upper Secondary School Illiteracy 47.1 52.9 0.0 0.0 Source: Socio-economic survey conducted by Quang Binh PIU December 2010 18. Although there is no one who is illiterate, the data shows that the average educational level of the household is relatively low with 47.1% of the heads of the household is with primary education, and 52.9% of them have secondary education while none of them go to high school. The main reason may be lie in the indicator on the structure of occupation which is in agriculture sector with the average income is very low may hinder the higher education of the heads of the household. 5 http://giamngheo.molisa.gov.vn/index.php/su-kien-noi-bat/353-s-kho-sat-h-ngheo-theo-d-kin-chun-ngheogiai-on-2011-2015.html Page 13
19. Current situation of land use: The land use distribution in the sub-project area are summarized in Table 6 below: Primarily, land area in the subproject area is mainly agricultural land and forest land comprising land for rice and vegetables growing (2,911m2/household) and forest and garden (604.8m2/household) out of the total area of 5990.5ha. Table 6.Land use situation HH s average (m2/hh) Total area 5990.5 Tenure land 390.5 Growing rice and crops 2911.0 Forest-garden land 2084.2 Others 604.8 Source: Socio-economic survey conducted by Quang Binh PIU, December 2010 III.2. SOCIO-ECONOMIC SITUATION OF THE AFFECTED HOUSEHOLD III.2.1. Age structure and education level of the AH 20. Results of socio-economic survey for affected households shows that there are 4 male and 4 female members in the family (in which 3 persons are under 20 years old, 4 people from 20 to 35 years old, 1 person falls in the age group from 36 to 40 years old and one person is in the category of 41 to 60 years old. The head of the household is male, aged 49; he works as a farmer and seasonal labor. 21. Most of the members of the affected household graduated from primary school, one person finished lower secondary education and no one has higher education. Thus, education of household members is affected on average than the average education level in the village Chay Lap. This can be explained by occupational structures of households, 100% of working age are engaged in agricultural production is essential; therefore, raise the educational level is not a priority of households. III.2.2. Economic activity 22. Agricultural production is the main economic activity and is the main source of income of the AH accounting for 100% working-age members, compared with the average land area of the households in the hamlet, it is seen that the AH s land area is much more than the average land area in the hamlet. Also, they work as hired labor during off-season period to get some income for the family. Through in-depth interview, it was realized that the household s income above the average income rate in the hamlet (which is ranging from 3-5 million VND/ household/month (~161$-269$) which is equivalent to 375,000 to 625,000 VND/person/ month (~20$-34$). This household s income is above the poverty line set by MOLISA for the period 2005-2010 and belongs to the near-poor group, who escaped the poverty rate of MOLISA (income from about 200,000 to 500,000 per person per month (~10.7$-27$) but still, bearing a high risk of vulnerability and less able to cope with/ resistant to natural disasters. 23. During the consultation process, Quang Binh PIU noted that the AH expected to receive adequate compensation for their land loss (see Appendix 2). They are ready to hand Page 14
over the land area to the project in favor of the interests of all people in the hamlet with a hope of to improving the livelihoods based on the tourism activities. III.3. LAND, HOUSE AND FACILITIES 24. The AH owns 400m 2 of residential land and 7847m 2 of land for agricultural production, the area of 900m 2 is belonged to the production land category (growing peanut at the present). All these lands have been issued with Land Ownership Certificate. 25. The AH currently is living in a fourth-level house in an area of 97m 2 built in the year 2000. The household is using electricity from the national grid and electricity is used for lighting. The AH is using water from a dug well for cooking and cleaning. They have a septic toilet. III.4. GENDER ISSUES III.4.1. Working division among the family members 26. Through in-depth interview, it was realized that in the affected household the role of women in income generating activities as well as manage the needs of family is important. 27. Due to the important role of women in the AH, they are the key for solving the problems related to land acquisition. In the domestic activities, women keep the money. With important decisions such as buying expensive items i.e. motorcycles, property values, decisions regarding education and career and marriage of the children, both husband and wife discuss however the head of the household makes a final decision. My family has 8 members; we discuss each other for doing business. In general, we discuss about all big family matters such as children s marriage, housing, buying motorcycles, but I has the final decision. Red Book is now in the name of both my wife and myself, if we have to do a new book, the name should be both spouses also. Quoted from in-depth interview with Mr. Nguyen Van Ha, aged 49, head of the affected household III.4.2. Names on the land use certificate 28. Certificate of land use rights are the names of both husband and wife who are affected. This shows the relatively equal relationship between the spouses. One important thing to note is that when a certificate of change of land use rights to reflect the new area after land acquisition, the certificate of land ownership will include the name and signature of both spouses. IV. PROJECT PRINCIPLES 29. The following principles were formulated to bridge the differences between ADB s and the Government s resettlement policies, and will apply to all civil works: Involuntary resettlement and impacts on land, structures and other fixed assets will be avoided or minimized where possible by exploring all alternative options; APs residing, working, doing business and cultivating land within the required project area as of the completion date of the census and detailed measurement survey will be entitled to compensation and rehabilitation assistance to assist them in improving, or at least maintaining their pre-project living standards and productive capacities. The Project will ensure that APs are able to find alternative sites or income sour; Page 15
Lack of formal legal title or rights will not be a bar to eligibility for compensation and assistance under the Project. APs will not be displaced from affected land until the village allocates suitable alternative land or compensation is paid that is sufficient to purchase suitable land within the same or neighboring village; All compensation will be based on the principle of replacement cost at the time of compensation. For houses and other structures, this will involve the costs for materials and labor at the time of acquisition, with no deduction for depreciation or for salvageable materials. Compensation for land will be replacement land as a priority, or where this is not possible, in cash adequate to purchase land locally of equivalent size and quality, and where required to improve land to achieve suitable quality; The process and timing of land and other asset acquisition will be determined in consultation with APs to minimize disturbance; Where houses and structures are partially affected to the degree that the remaining portion is not viable for its intended use, the Project will acquire the entire asset and APs will be entitled to compensation at replacement cost for the entire asset; APs will be systematically informed and consulted about the Project, the rights and options available to them and proposed mitigating measures; The key information in the RP such as measurement of losses, detailed asset valuation, compensation and resettlement options, detailed entitlements and special provisions, grievance procedures, timing of payments and displacement schedule will be disclosed to APs in an understandable format such as the distribution of public information booklets (PIBs) prior to submission to ADB for review and approval; Resettlement identification, planning and management will ensure that gender concerns are incorporated, including gender-specific consultation and information disclosure. This includes special attention to guarantee women s assets, property, and land-use rights, and to ensure the restoration of their income and living standards; Existing cultural and religious practices will be respected and, to the maximum extent practical, preserved; Special measures will be incorporated in the RP to protect socially and economically vulnerable groups such as ethnic minorities, women-headed households, children, households headed by the disabled, the elderly, landless and people living below the generally accepted poverty line. Vulnerable APs will be provided with appropriate assistance to help them improve their standard of living through asset building strategies such as provision of land, replacement housing of minimum standards and increased security of tenure. There will be effective mechanisms for hearing and resolving grievances during updating and implementation of the RP. Resettlement Committees (RCs) will include representatives from APs especially women and vulnerable groups; Institutional arrangements will be in place to timely and effectively design, plan, consult and implement the land acquisition, compensation, resettlement, and rehabilitation programs; Page 16
Adequate budgetary support will be fully committed and made available to cover the costs of land acquisition and resettlement within the agreed implementation period; Appropriate reporting, monitoring and evaluation mechanisms will be identified and set in place as part of the resettlement management system. Monitoring and evaluation of the land acquisition, resettlement and rehabilitation processes and the final outcomes will be conducted by an independent monitor; Voluntary donation will not be applied for any assets. The project will not award a construction contract for a specific sub-project or a specific geographic area until (i) adequate compensation for sub-projects or geographic areas has been paid, (ii ) a recovery program has been in place, and (iii) land area has been resolved from all the issues in the approved RP; No demolishing property or / entrance until households are fully compensated. Page 17
V. PROJECT LEGAL/POLICY FRAMEWORKS, ELIGIBILITY AND ENTITLEMENTS V.1. PROJECT LEGAL/POLICY FRAMEWORKS 30. The legal and policy framework for compensation, resettlement and rehabilitation under the Project is defined by the relevant laws and regulations of GoV and ADB policies. In case of discrepancies between the Borrower s laws, regulations, and procedures and ADB's policies and requirements, ADB's policies and requirements will be prevailed. V.1.1. Relevant Vietnamese legislations 31. The Constitution (1992) that confirms the right of citizens to own and protect the ownership of a house. In addition, the Government has enacted a number of Laws, Decrees and regulations that constitute the legal framework for land acquisition, compensation and resettlement. The principal documents include: The Land Law No. 13/2003/QH11, providing Viet Nam with a comprehensive land administration law. The 2003 Land Law supersedes earlier versions of 1987 and 1993. Decree No. 181/2004/ND-CP dated 29 October 2004, guiding the implementation of the Land Law. Decree No. 197/2004/ND-CP dated 3 December 2004 on compensation, rehabilitation and resettlement in the event of land recovery by the State. Circular No. 116/2004/TT-BTC dated 7 December 2004 guiding the implementation of Decree No. 197/2004/ND-CP. Circular No. 69/2006/TT-BTC dated 2 August 2006 issued by Ministry of Finance, guide on amending and supplementing Circular No.116/2004/TT-BTC; Decree No. 17/2006/ND-CP dated 27 January 2006, amending Decree No. 181/2004/ND- CP. Decree No. 84/2007/ND-CP dated 25 May 2007 amending provisions of land use right certificates, land acquisition, implementation of land use right, procedures and sequencing of compensation, assistance and resettlement when State recover land, and solving land grievances. Decree No. 69/2009/ND-CP dated 13 August 2009 amending a number of provisions on land use planning, land rental rates, land reclamation, and resettlement and compensation. Circular No. 14/2009/TT-BTNMT, dated 1 October 2009 guiding the implementation of Decree 69/2009/ND-CP. Decree No. 188/2004/ND-CP dated 16 November 2004 specifying methods for land pricing and land price frameworks in the event of land recovery by the State. Circular No. 114/2004/TT-BTC dated 7 December 2004 guiding the implementation of Decree No. 188/2004/ND-CP. Decree No. 79/2003/ND-CP, promulgating the regulation on the exercise of democracy in communes, including requirements for consultation with and participation of people in communes. Decree No. 17/2001/ND-CP dated 4 May 2001 on the management and use of Official Development Assistance (ODA). Page 18
Direction No. 17/2004/CT-TTg dated 24 May 2004 on speeding up the disbursement of ODA capital source. 32. Under the 2003 Land Law, ownership of land in Viet Nam resides with the State. The State exercises the right to assign and lease land to land users, including individual, households and organizations. In the case of assigned land, the State delegates to Provincial People s Committees (PPCs) the authority to grant land use rights certificates (LURC) to land users. With respect to land acquisition, resettlement and compensation, the Land Law makes the following provisions: The State reserves the right to recover land for the purposes of defense, security and national and public interests (Article 38). Decree No. 181/2004/ND-CP defines national and public interest to include infrastructure projects such as the GMS-SCCP. Individuals, households and organizations that have or are eligible to be granted land use right certificates for recovered land will receive compensation for the loss of these assets (Article 42(1)). Before land is recovered, the user must be informed of the reasons for recovery; the schedule and plans for resettlement, if necessary; and, options for compensation. This must occur at least 3 months prior to recovery of agricultural land and 6 months prior to recovery of non-agricultural land (Article 39). Compensation for recovered agricultural and rural residential land will be in the form of new land of the same purpose of use or, if no new land is available, cash equivalent to the land use right value of the recovered land (Article 42(2) and (3)). In the latter case, the land use right value is established as the value of similar land under normal market conditions, as determined on an annual basis by PPCs (Article 56). Recovery of land from people directly involved in agricultural production but having no land available for continued production will receive cash compensation and, in addition, support from the State to stabilize their lives (Article 42(4)); Recovery of land will occur without compensation in the following cases, among others: a) land is recovered from organizations that use State funds to pay land use levies for assigned land or land rents for leased land, or are assigned land without having to pay land use levies; b) recovered land has been illegally encroached or occupied, or the occupants are not eligible to be granted land use right certificates; c) recovered land is rented from the State; and, d) recovered land is traffic or irrigation land, or used for cemeteries or graveyards (Article 43(1)). Structures and other fixed assets on recovered land will not be compensated in cases where they have been constructed without permission; in contravention of permitted uses in land use plans; or, when structures are located on illegally encroached land (Article 43(2)). 33. Decree No. 197/2004/ND-CP regulates the eligibility and procedures for compensation, assistance and resettlement in the event of State recovery of land. The principles underlying compensation are: (i) recovery of land from eligible persons shall be compensated; (ii) in the event, the affected person is not eligible for compensation, consideration will be given to forms of assistance; (iii) compensation for affected land will be in the form new land allocation with the same purpose of use or, if no such land is available, cash compensation equal to the value of land use rights at the time of recovery; and, (iv) outstanding financial liabilities associated with land to be recovered will be deducted from the amount of compensation or assistance money. The Decree and Circular No. 116/2004/TT- BTC set out in detail the types of compensation for different types of users and losses; Page 19
assistance policies; provisions for individual and group resettlement; and, the roles and responsibilities for implementation of resettlement project. 34. Decree No. 17/2006/ND-CP amends Decree No. 197/2004/ND-CP to strengthen several aspects of the provisions for compensation, assistance and resettlement, including: (i) a requirement to update official PPC prices, as necessary, to reflect market values for affected assets; (ii) life stabilization assistance for poor households; and, (iii) assistance for occupational change and job creation for affected persons (APs) losing significant portions of their productive assets, as well as for APs that relocate to resettlement sites. 35. Decree No. 188/2004/ND-CP regulates the methodology for determining land prices and price frames for State recovery of land, as well as for taxation on land use and the transfer of land use rights and for land rents for government land. It establishes the minimum and maximum prices for different types and categories of land. The principle underlying the determination of land prices is the actual transfer price on the market under normal conditions between a willing seller and buyer without regard to factors such a speculation, changes in planning, forceful transfer or blood relationship. Circular No. 114/2004/TT-BTC elaborates in detail the methods (direct comparison and income methods) for determining land prices. 36. Decree No. 17/2001/ND-CP stipulates that where an international aid agreement has provisions that are inconsistent with the provisions of Viet Nam law, the provisions of the ODA agreement shall prevail (Article 29). Decree No. 197/2004/ND-CP corroborates that when compensation, assistance and resettlement for a project using official ODA differs from the provision of the Decree, the project must be submitted to the Prime Minister for consideration and decision (Article 2). Decree No. 131/2006/ND-CP stipulates that In case the international agreement on ODA usage is in contrast on the GOV policy, the international agreement will be prevailed: Construction Law No. 16/2003/QH11, on compensation and relocation of people affected by ground clearance for investment projects. Decree No. 16/2005/ND-CP dated 7 February 2005 on the implementation of the Construction Law. Decree No. 182/2004/ND-CP dated 29 October 2004 on penalties for administrative violations in land issues. Decree No. 198/2004/ND-CP dated 3 December 2004 on land use fees. Circular No. 117/2004/TT-BTC dated 7 December 2004 guiding the implementation of Decree No. 198/2004/ND-CP. Decree No. 60/1994/ND-CP dated 5 July 1994 on property ownership and the right to use urban residential land, ensuring the right to own residential structures and use residential land. Decree No. 45/1996/ND-CP dated 3 August 1996 regulates the amendment of Article 10 of Decree No. 60/1994/ND-CP, allowing land use rights to those not eligible under Decree No. 60/1994/ND-CP. Decree No. 61/1994/ND-CP dated 5 July 1994 on the purchase, sale and trading of residential dwellings. Decree No. 64/1993/ND-CP dated 27 September 1993 on the distribution of agricultural land to households for long-term agricultural purposes. Page 20
Decree No. 70/2001/ND-CP dated 3 October 2001 that stipulates that all documents registering family assets and land use rights must be in the names of both husband and wife. 37. Laws, decrees and decisions relevant to public disclosure of information include: Land Law, No. 13/2003/QH11, Article 39, requiring disclosure of information to affected people prior to recovery of agricultural and non-agricultural land of, respectively, 90 and 180 days minimum. 38. Regulations and policies issued by Quang Binh PPC include: Decision 13/2009/QD-UBND dated 21 July 2009 of Quang Binh PPC promulgating the prices of assets such as crops and trees, supporting the aquaculture activities, mausoleum and graves and transporting support to make the basis for compensation when the State acquires land within Quang Binh province. Decision 32/2009/QD-UBND dated 20 December 2009 of Quang Binh PPC on price of land in different categories within Quang Binh province in 2010 and the principles for categorizing streets, locations, and land area within Quang Binh province; Decision 02/2010 dated 05 February 2010 of Quang Binh PPC regulating the compensation, assistance and resettlement when the State acquires land within Quang Binh province; V.1.2. ADB s policies 39. The aim of the ADB Policy on Involuntary Resettlement (ADB, 1995) is to avoid or minimize the impacts on people, households, businesses and others affected by the land acquisition required by a project. Where resettlement is not avoidable, the overall goal of the ADB policy is to compensate and assist affected people to restore their living standards to levels equal to, if not better than, that they had before the Project. 40. The main objectives and principles of the ADB Policy on Involuntary Resettlement are as follows: Involuntary resettlement should be avoided where feasible; Where population displacement is unavoidable, it should be minimized by exploring all viable project options; People unavoidably displaced should be compensated and assisted, so that their economic and social future would be generally as favorable as it would have been in the absence of the Project; APs should be informed fully and closely consulted in resettlement and compensation options; Existing social and cultural institutions of APs who must relocate should be supported and used to the greatest extent possible, and APs should be integrated economically and socially into host communities; Lack of legal rights to the assets lost or adversely affected will not prevent APs from entitlement to compensation and rehabilitation measures. Those without legal title to land occupied or used by them (e.g., non-titled APs) will be entitled to various kinds of resettlement assistance to improve their socioeconomic status; Page 21
Particular attention must be paid to the needs of the poorest APs and other vulnerable groups that may be at high risk of impoverishment. This may include APs without legal title to land or other assets, households headed by females, the elderly or disabled and other vulnerable groups, particularly ethnic minorities. Appropriate assistance must be provided to help them improve their socioeconomic status; All stages of resettlement identification, planning, and management will ensure that gender concerns are incorporated, including gender-specific consultation and information disclosure. This includes special attention to guarantee women s assets, property, and land-use rights; and to ensure the restoration of their income and living standards; 41. The ADB Policy on Indigenous Peoples (ADB, 1998) defines indigenous or ethnic minority peoples as those with a social or cultural identity distinct from the dominant or mainstream society, which makes them vulnerable to being disadvantaged in the processes of development. The Policy recognizes the potential vulnerability of ethnic minorities in the development process; that ethnic minorities must be afforded opportunities to participate in and benefit from development equally with other segments of society; and, have a role and be able to participate in the design of development interventions that affect them. The anticipated impact (positive and negative) and mitigation measures are incorporated in the Project s Ethnic Minorities Development Framework. Social analysis of a project or subproject will assess whether indigenous or ethnic minority people are likely to be affected by the Project or subproject. If a project or subproject is likely to have impacts caused by land acquisition only, specific action for ethnic minorities, specified in the project or subproject RP is required to address the impacts. If ethnic minorities population affected by a subproject exceeds 20% of all the affected persons, small-scale livelihood activities, which shall be prepared in consultation with ethnic minorities populations, shall be incorporated in subproject RP as a special rehabilitation program. 42. The ADB Policy on Gender and Development (ADB, 1998) adopts gender mainstreaming as a key strategy for promoting gender equity, and for ensuring that women participate and that their needs are explicitly addressed in the decision-making process for development activities. ADB s OM F2/OP requires that the findings of a gender analysis be included in the RP, and at all stages, resettlement identification, planning, and management will ensure that gender concerns are incorporated, including gender-specific consultation and information disclosure. This includes special attention to guarantee women s assets, property, and land-use rights; and to ensure the restoration of their income and living standards. 43. The ADB Public Communications Policy (ADB, 2005) seeks to encourage the participation and understanding of stakeholders and people affected by ADB-assisted activities. Information on ADB-funded projects should start early in the preparation phase and continue throughout all stages of project development, in order to facilitate dialogue with AP and other stakeholders. The EA should, as necessary, develop a project communications plan and designate a focal point to maintain contact with AP. With respect to land acquisition, compensation and resettlement, information should be distributed to (APs) and publicly in the following manner: (i) the draft RP prior to loan appraisal; (ii) the final RP following its completion; and, (iii) the revised RP, following any revisions. This information can be in the form of brochures, leaflets or booklets, in the local language(s) as well as English, the working language of the ADB. When APs include non-literate people, other appropriate methods of communications will be used. The policy also requires disclosure of social monitoring reports. Page 22