Land in the North and East: Concern and confusion over Government circular

Groundviews.org: The Government recently unveiled a policy regarding land in the North and East through the introduction of a Cabinet Memorandum (memo) titled ‘Regularise Land Management in Northern and Eastern Provinces,’ which was subsequently followed by a Land Circular (circular) titled ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’ (Circular No: 2011/04) issued on 22 July by the Land Commissioner Generals Department in Colombo in order to operationalise the memo.

Since then, there have been reports of notices and forms being issued in areas of the North and East for people to register their land under the Bimsaviya project to ensure title registration of their property. At the time of writing, it was unclear whether this specific process was the same as the one set out under the circular. Contradictory information was received from the different divisional secretariat units (DSs) where the forms were distributed; increasing confusion regarding the process and the rights of those owning and claiming land in the North and East.

The memo and related circular mentioned above are the most recent policy initiatives undertaken by the Government with regard to land in the North and East.  This current policy initiative if implemented will have far-reaching implications for key issues including how land claims can be decided, how land is to be alienated, and types of ownership and control that can be provided, which in turn will impact the process of post-war normalisation and development projects. The focus is on state land but the policy initiative will have implications for private land.

Given the complexity of land issues in the North and East and the fundamental importance of land to multiple processes including reconstruction of permanent houses, rehabilitation of war-affected families, return to one’s land, development and strengthening co-existence, there is an urgent requirement for the Government to provide a policy framework to deal with the issue of land taking on board the rights, vulnerabilities and needs of affected communities and in line with legal obligations and human rights standards. While some of the land issues such as lack of awareness relating to ownership, competing claims, loss of documentation, secondary occupation of land by other civilians or state actors, including the military, may not be unique to the North and East, the context of the war resulted in complicating and increasing the scale of these problems. This article will highlight key concerns relating to this current initiative, for more information on the process and recommendations please see our report here.

Key concerns

Given the complexity of land issues in conflict-affected areas, the necessity to formulate policies and processes to address these problems is all too apparent. Hence, the overall aim of this current initiative needs to be welcome. However, this circular contains particular provisions, which are problematic and unclear and may exacerbate fear and apprehension among affected communities. Some of the key concerns include:

n    The policy aims to advantage the land claims of those who left during the war, but the circular does attempt to recognise the rights of other civilians who secured control over these lands and have developed them land. In such situations the circular suggests that alternate land can be provided for the original claimants. However, given that the circular also recommends that land transaction taken during the period of the war be ruled void as it was under “terrorist influence” the status of these claims is by no means clear. Thus, there is a risk that landowners and claimants, including some of whom secured government documentation for ownership, may be dispossessed.

n    The involvement of the military in the different committees set out in the circular is particularly problematic.

n    The policy fails to reference the National Land Commission that has not yet been established as per the Thirteenth Amendment.

n    The lack of information on this process, both among government officers who are meant to take this process forward and to the general public, is a fundamental problem. The Government’s failure to develop a public awareness program has intensified the confusion and apprehension among the general public in the North and East. The memo does make reference to the Diaspora; hence, the publicity strategy for the circulation needs to be both national and international.

n    There is a lack of clarity on who needs to apply for this process or whether all land owners and claimants in the entire North and East should comply.

n    Lands acquired for national security and development purposes are exempt from the process laid out under the circular. Hence, there is lack of clarity on how the land rights of affected families will be guaranteed and how they will be compensated and restituted.

n    There are stipulated, brief time periods for applications of land claims and appeals, which may prove inadequate.

n    There was limited consultation of actors from the two provinces during the planning stages, and mainly limited to government officers. It is not clear whether the process is flexible to address problems that may crop up during the implementation.

Way forward

While there is a need for new policy initiatives to address issues related to land in a post-war context, there are many concerns with the present process.

These concerns need to be addressed immediately by the Government, ensuring that any process established to decide land claims is fair, just and equitable and is not perceived by communities as favouring any particular group.

Efforts need to be made in order to ensure that this policy initiative does not exacerbate land-related tensions and that solutions are found to address land needs of affected communities.

There is a likelihood that problems may come up in the future if such processes do not factor in concerns highlighted in this article.

In moving forward with the present process and any other land related initiatives, it is paramount that the authorities implement existing constitution and legal obligations, take on board the needs of communities and be transparent and inclusive in the formulation and implementation of any initiatives.