Legal Watch
Rights of persons subject to involuntary resettlement

By Nayana
ajor development projects often involve the acquisition of land and the consequent displacement and relocation of persons living on that land. This trend is likely to accelerate as the Government seeks to get on with major urban development projects such as construction of expressways.

However the history of involuntary resettlement and even large-scale voluntary resettlement to accommodate the needs of economic development has not been a happy one. During the 1980s suicide rates were said to be highest in some of the Mahaweli resettlement areas. More recently, with a larger armoury of legal weapons at their disposal, groups resistant to large road-development and hydro-power projects have been able to delay the implementation of such projects for years.

Particularly in regard to expressway projects, authorities confirm that most of the resistance is not to the project as such, but individual resistance to one’s own land being taken for the project. The cause of speedy development is also not helped by sudden changes of route allegedly to save some people’s land at the expense of others.

While political indiscipline in not adhering to approved sites and routes is no doubt one cause for unrest, persons who are to be relocated also have a legitimate grievance at the inadequacy of the compensation and relocation measures presently provided by law to meet such situations.

The Land Acquisition Act provides for compensation only in respect of land, structures and crops. Entitlement to compensation is based on legal ownership and takes no account of long de facto use or occupation. It also does not take account of loss of value of land that is not acquired, e.g. a hotel or house that is not actually acquired but whose accessibility or scenic amenity is seriously impaired as a result of the project. There are also complaints of long delays in the payment of compensation.

While government-sponsored schemes generally provide for relocation of the displaced, rather than mere payment of compensation, there are no prescribed standards for such relocation – no requirement to ensure the proper socio-economic integration of the displaced persons within their new community.

Normally the proponent of the development project, be it a State or private agency, is required to meet the cost of resettlement of the displaced. However, an example of what governmental agencies pressured by big foreign "investors" can agree to in this regard was illustrated by the terms of the proposed Eppawela phosphate mining agreement that was struck down by the Supreme Court in 2000. Justice Amerasinghe delivering judgment of the Court, quoted the relevant portion of the agreement with italics for emphasis, which we repeat:

"To the extent that this area is included within the Mining Area `85`85 and the Company determines that it is necessary to relocate such occupants in order to accommodate mining such area, then the Company will pay the costs of such relocation and the Government will use its best efforts to facilitate the relocation of any inhabitants of such land as requested by the Company in a manner which does not create an undue financial burden on the Company or delay the Company’s development and operation of the Mining Area `85`85 and to cause the removal at minimum cost to the Company of squatters having no legal or possessory rights."

Regulations framed under the National Environmental Act in the mid 1990s require an impact assessment if the project involves involuntary resettlement of more than 100 families (other than resettlement resulting from emergency situations). However once again no minimum standards or criteria are prescribed. Although an EIA report is required by law to include a consideration of less environmentally harmful alternatives and the reasons why such alternatives were rejected, in practice this is seldom effectively done, since the EIA is prepared at the behest of the project proponent who has already decided that he wants to do his project in a certain way.

However, between late 2000 and mid 2001 a salutary development occurred with the formulation of a National Involuntary Resettlement Policy (NIRP) for Sri Lanka with the assistance of the Asian Development Bank. This policy was approved by the Cabinet of Ministers on May 24, 2001.

Its objectives are to minimize and mitigate negative impacts of development-induced involuntary resettlement. It requires the re-establishment of the affected persons "on a productive and self-sustaining basis". The people concerned should be "fully and promptly compensated and successfully resettled" and their livelihoods should be re-established and their standard of living improved. It is also stipulated that there should be no impoverishment of people as a result of compulsory land acquisition for development purposes by the State.

The Policy is also subject to the overriding principle that involuntary resettlement should be avoided or reduced as much as possible by "reviewing alternatives to the project as well as alternatives within the project". Where resettlement is unavoidable, affected persons should be fully involved in the selection of relocation sites, livelihood compensation and development alternatives. Compensation should be paid "promptly".

This Policy is intended to apply to all development-induced land acquisition or recovery of possession by the State. Thus it would appear that the draconian provisions of the State Lands (Recovery of Possession) Act would also have to be modified when land is taken back for development. This interpretation is reinforced by the further requirement that affected persons who do not have documented title to land should receive "fair and just treatment".

Where more than 20 families are affected, the authorities will be required to formulate a "comprehensive" Resettlement Action Plan. An idea of the sort of matters that such a plan should involve can be gleaned from the following extract from the judgment of the Indian Supreme Court in the Narmada Dam case, though of course displacements in Sri Lanka are unlikely to ever be on that scale:

"The Award provides that every displaced family, whose more than 25 per cent of agricultural land holding is acquired, shall be entitled to and be allotted irrigable land of its choice to the extent of land acquired, subject to the prescribed ceiling of the State concerned, with a minimum of two hectares of land. Apart from this land-based rehabilitation policy, the award further provides that each project-affected person will be allotted a house plot free of cost and a resettlement and rehabilitation grant. The civic amenities required by the award to be provided at places of resettlement include one primary school for every 100 families, `85. one dispensary, one seed store, one children’s park, one village pond and one religious place of worship for every 500 families, one drinking water well with trough and one tree platform for every 50 families, approach road linking each colony to main road, electrification, water supply, sanitation arrangements, etc. [sic]."

For those who may argue that the cost of development must not be made excessive, the answer is that even lending institutions such as the ADB have evidently decided that the cost of mass impoverishment and discontent that may follow from badly planned resettlement is worse.

The Sri Lankan Policy also mandates that resettlement should be planned and implemented with full participation of the provincial and local authorities. Thus the Policy seems to envisage an end to strong-arm tactics by the Centre acting unilaterally through the Urban Development Authority (UDA).

According to the Policy document, the Ministry of Land Development will be responsible for the implementation of the NIRP while project executing agencies will be required to bear the full costs of compensation and resettlement. The Central Environmental Authority (CEA) will be responsible for the review of impacts and mitigating measures, and approval of resettlement plans which will be publicly available.

This Policy document, having received Cabinet approval, could serve as a useful guide to implementation even under existing law, provided acquiring authorities and project proponents are made aware of its terms. However to make it truly effective, certain amendments to the law will be needed, especially to the Land Acquisition Act, the National Environmental Act and the State Lands (Recovery of Possession) Act. These have been slow in coming, for a Policy approved in 2001, but amendments to the first two of these Acts are understood to be currently under preparation.