The National Involuntary Resettlement Policy: A case for implementation

While it is not clear whether a notice required under the LAA was published, the residents in Wanathamulla were subject to threats and forced to move from the premises without being given a proper opportunity to object to the authorities

By Vidya Nathaniel 

Losing one’s land can be a distressing experience. Loss of land is essentially the loss of security, housing, shelter, and – in some cases – livelihood. This is the plight of Sri Lankans displaced due to official land acquisitions. 

Introduction to the Land Acquisition Act

The post-war era provided an opportunity to move forward with much-needed development projects. The Government therefore began to acquire large areas of land in order to facilitate projects such as highways, industrial zones and economic hubs. It is in this context that private lands are acquired.

The Land Acquisition Act (LAA) permits the acquisition of private land in any area, if the land is required for a ‘public purpose’. The LAA does not provide a clear definition of ‘public purpose’. However, the case law defines ‘public purpose’ as relating to ‘public utility and benefit of the community as a whole’. Large-scale development in Sri Lanka would fall within this definition. 

Shortcomings of the LAA

The LAA outlines the procedures to be followed in acquiring land, paying compensation and addressing the grievances of affected persons. The procedure under the LAA is inadequate for the following reasons:

1. Arbitrary nature of land acquisition – Usually, an acquisition under the LAA requires the display of notices to affected parties and the entertainment of their objections.  However, the LAA also provides for acquisitions on an urgent basis, in which case the land can be acquired soon after a notice is placed on or near the land. This process can be arbitrary as the Minister does not need to justify the acquisition of a land on an urgent basis. Moreover, there are no reasonable timeframes for notices to be displayed or objections to be entertained. 

2. Inadequate compensation – Compensation under the LAA is only available for those with written proof of their interest in the land. Further, the compensation is limited to the depreciated value of the structure. The compensation calculated does not take into account replacement costs, loss of income, or improvements made to the land. Additionally, there are no guarantees of receiving compensation before the acquisition, particularly in the case of urgent acquisitions. 

3. Resettlement – The LAA does not impose an obligation on the state to address resettlement issues following the acquisition of land. It also does not impose any obligation on the state to consult and include affected persons in the resettlement process. 

The shortcomings of the LAA are clearly demonstrated in the recent acquisitions made under the ‘Urban Regeneration Project’. Under this project, steps were taken to evict families in Wanathamulla, Borella in December 2013. Residents in these areas have occupied these locations for several years. In fact, in Wanathamulla, some of the residents had occupied these premises since the 1950s, and some of the families had received formal title deeds proving title to premises dating back to the 1970s. 

The manner in which land was acquired in these locations was highly irregular. While it is not clear whether a notice required under the LAA was published, the residents in Wanathamulla were subject to threats and forced to move from the premises without being given a proper opportunity to object to the authorities. 

Evicted families from Wanathamulla were not offered compensation. Instead, they were offered alternative accommodation which was wholly unsatisfactory. In any event, compensation under the LAA does not take into account the improvements made to the houses, and livelihoods built around the premises. Therefore, even if the families received compensation under the LAA, the value of the compensation would not have covered the totality of their loss. In fact, the residents were required to contribute to the costs of resettlement.

According to a writ application filed by the petitioners, the residents were required to make an initial payment of Rs. 50,000 with a further Rs. 50,000 to be paid within the first three months towards maintenance and upkeep. Additionally, the residents were required to pay monthly instalments of Rs. 3,960 over the next 20 years for the proposed apartments.

The affected families were not given adequate information with regard to alternative accommodation or compensation. Further, since the LAA does not require the authorities to consult families on the resettlement process, the accommodation did not properly provide for the needs of the families. 

NIRP – Addressing the shortcomings of the LAA

The LAA clearly does not ensure that affected persons are adequately protected. In 2001, the National Involuntary Resettlement Policy (NIRP) was approved by Cabinet to address the shortcomings of the LAA. NIRP calls for amendments to be made to the LAA so as to create a protective framework for people who are displaced due to development projects. Through the NIRP, displaced persons are assured of a standard of living comparable to that at the time of displacement. 

Some of the main principles of NIRP include:

1. Minimisation and mitigation of negative impacts of involuntary resettlement – Steps to be taken to avoid involuntary resettlement by reviewing alternatives to and within the project. 

2. Guarantees adequate compensation for affected persons in a timely manner – Compensation is based on full replacement cost including transactions costs, and is calculated to include the loss of land, structures, other assets and income. Compensation is not limited only to persons with documentary evidence of their interest in land.  The policy also provides for the authorities to re-establish income sources and livelihoods of affected persons. 

3. Inclusion of affected persons in the relocation and resettlement process – The policy provides for resettlement action plans of varying levels of detail – depending on the number of families being displaced – to be published, and to be made publicly available. Further, affected persons are to be fully involved in the selection of relocation sites. Through this process, affected persons are made active stakeholders in the process.  

Although NIRP was introduced over a decade ago, it has yet to be adopted into legislation in Sri Lanka. The failure to pass laws in this regard has resulted in affected persons being unable to rely on NIRP principles in the case of their lands being acquired.  

Is NIRP feasible?

NIRP has been applied in the past with relative success, such as in the case of the Lunawa project. The Lunawa project was the joint initiative of the Japan Bank for International Cooperation (JBIC) and the Government of Sri Lanka to improve the drainage and canal systems of the Lunawa Lake catchment area. In line with NIRP principles, the resettlement strategy incorporated measures to ensure active participation of the 833 families affected with livelihood restoration, gender equality and community development opportunities. 

The project partners faced challenges with respect to the valuation process and inadequate institutional capacity to implement the policy. Yet the NIRP proved vital in ensuring durable solutions to resettled families. The success of the Lunawa Project demonstrates the feasibility of NIRP if there is adequate political will to apply it.

Selective application

Although NIRP has been officially recognised by Cabinet, and has been successfully applied in the past, the policy has not been adopted consistently in all cases of development-induced land acquisitions. Since its official recognition, the Government has embarked on various development projects in which it has failed to comply with NIRP. 

The Sampur case currently before the Supreme Court (SC F 167/2015) is an example of a development project which did not apply the principles of NIRP. In 2006, areas within Sampur were declared a Special Economic Zone (SEZ), and families with lands in this area were displaced. The area was subsequently declared a high security zone (HSZ) and then in 2012, a Gazette notification was passed declaring that this land was to be developed into a Special Zone for Heavy Industries.

Persons who were originally displaced by the SEZ and HSZ continued to be displaced for development purposes. These persons were only given a standardised compensation and relocation package, which is unlikely to meet the specific needs of many affected people and failed to meet the standards set by NIRP. Other instances of development projects include the military acquisition of land in North Valikaman in the Jaffna District and the Urban Regeneration Project, which has resulted in eviction and involuntary resettlement of numerous families from Slave Island and Borella (discussed above). 

Separately, there have been attempts to incorporate selected aspects of NIRP into statutory law. For instance, two Gazette notifications were passed in April 2009 and subsequently in November 2013, under the LAA, which improved the LAA’s system of compensation. However, these regulations fall short of full compliance with NIRP, as the regulations were only applicable to certain identified projects. 

Conclusion

Since the policy has not been passed into law, implementing agencies are not obliged to actually apply the policy. Full compliance with NIRP requires the government to amend existing laws in order to bring them in line with NIRP principles. 

President Sirisena, in his manifesto, promised that ‘Relief will be provided to all citizens who were illegally evicted from their houses and land under various grounds. Property of citizens of Colombo who were deprived of their houses and land will be reassessed and their value will be deducted from their present housing loan.’*

This is only a short-term solution to a much larger problem. Development projects will continue to be implemented in Sri Lanka, and land will continue to be acquired in order to facilitate this form of development. Steps need to be taken to offer more durable solutions to persons who will be required to give up their lands for such development activities. 

NIRP offers a workable and officially recognised framework through which durable solutions to the ethical and practical dilemmas of development-induced displacement can be realised. The Government thus has an obligation to incorporate NIRP into statutory law in order to safeguard the rights and entitlements of communities forced to relocate in the wider public interest of development, and to ensure that the resettlement process is accountable and equitable. 

(*Manifesto of the New Democratic Front, 2015, pg 25.)

[Vidya Nathaniel, LL.B (London), is an attorney-at-law and an Analyst at Verité Research. She has published studies on land rights and displacement, and her work is regularly cited in Parliament and the press.]