Challenges in Implementing Best Practices in Involuntary Resettlement: A Case Study in Sri Lanka

CHALLENGES IN IMPLEMENTING BEST PRACTICES IN INVOLUNTARY RESETTLEMENT

A Case Study in Sri Lanka

Jayantha Perera Amarasena Gamaathige Chamindra Weerackody

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Asian Development Bank.

Challenges in implementing best practices in involuntary resettlement: A case study in Sri Lanka Mandaluyong City, Philippines: Asian Development Bank, 2016.

1. Social safeguards. 2. Sri Lanka. 3. Resettlement. 4. Development projects. 5. Safeguard policies. I. Asian Development Bank.

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Contents

List of Boxes, Figures, Maps, and Tables

Boxes

Figures

Maps

Tables

Foreword

In 1986, the Asian Development Bank (ADB) issued the Staff Instructions on Socio-cultural Impacts of Bank Projects, where resettlement was identified as one of the socioeconomic and cultural issues that affects the success of a development project, and that staff should help identify these sociocultural issues and possible mitigation measures. In 1994, ADB issued the Staff Instructions on Involuntary Resettlement to outline a broad approach to involuntary resettlement and ensure that the people displaced by a project receive benefits from it and they should be at least as well-off as and possibly better-off than they would have been without the project. Based on this key premise, in 1995 ADB introduced its Involuntary Resettlement Policy which emphasized the importance of avoiding displacement and land acquisition—wherever feasible—and ensuring that those displaced will at least be as well-off as they would have been in the absence of the project.

One of the earliest projects where the 1995 Involuntary Resettlement Policy was applied was the Southern Transport Development Project in Sri Lanka. ADB supported the implementing agency in resettlement planning, implementation and reviewing the progress of land acquisition, resettlement, and income restoration. The project not only provided a challenging environment to apply several involuntary resettlement best practices, but it was also a learning forum to test their suitability and applicability.

This book documents the relationships between and among ADB, the project implementing agency, and affected persons. The analysis of complex relationships reveals the inherent risks in applying international resettlement best practices to a complex infrastructure development project and specific strategies needed to overcome them.

I thank the authors for not only addressing the outcomes of land acquisition and resettlement, but also for providing insights on how the development process could better accommodate the needs and aspirations of affected persons and communities. The authors’ participation in the project over a decade during planning, implementation, and monitoring allows them to explain the strengths and weaknesses of the social safeguard application of the project, and the success or failure of its attempts at introducing international best practices in involuntary resettlement.

This timely and important knowledge product of ADB’s South Asia Department will provide useful insights into resettlement planning, implementation, and monitoring for policy makers, development practitioners, resettlement specialists, and researchers on social and institutional development.

Hun Kim

Director General

South Asia Department

Acknowledgments

This book, Challenges in Implementing Best Practices in Involuntary Resettlement: A Case Study in Sri Lanka, was a project of the Sri Lanka Resident Mission of the South Asia Department (SARD) of the Asian Development Bank (ADB). Its senior project officer, Aruna Nanayakkara, coordinated the project. SARD’s Director General Hun Kim encouraged this publication and approved funds under the technical assistance project Strengthening Knowledge-Driven Development in South Asia (TA 7997-REG) to implement it.

Three consultants were recruited under the technical assistance—Jayantha Perera, Amerasena Gamaathige, and Chamindra Weerackody—to write the book on the involuntary resettlement aspects of the Southern Transport Development Project in Sri Lanka. Each author has more than 10 years of firsthand experience in involuntary resettlement aspects in the project as ADB staff and consultants. The authors worked in close collaboration with SARD staff.

SARD Senior Safeguard Specialist Ricardo C. Barba, former Principal Knowledge Management Specialist Gambhir Bhatta, South Asia Transport and Communication Director Hiroaki Yamaguchi, Advisor and Head of the Portfolio, Results and Quality Control Unit Hans Carlsson, Principal Natural Resources and Agricultural Economist Ahsan Tayyab, and Social Development Specialist Sharon Zhao were instrumental in getting this project through its various stages.

Comments and suggestions were given, among others, by the ADB internal peer reviewers Madhumita Gupta, principal social development specialist, East Asia Department; Indira Simbolon, principal social development specialist, Sustainable Development and Climate Change Department; and Tulsi Bisht, social development specialist (safeguards), Sustainable Development and Climate Change Department.

The book also benefited from the insightful comments of the external peer reviewers Tudor Silva, professor, University of Peradeniya in Sri Lanka; and K. Karunathilake, professor, University of Kelaniya in Sri Lanka.

At Department of External Relations, Kae Sugawara edited the manuscript with diligence, Rommel Marilla designed the cover page, Ma. Theresa Arago copyedited the book, and April Gallega, coordinated the publication with care and great efficiency. Ruwina Sagari in the Sri Lanka Resident Mission provided administrative and secretarial support. DER Publishing Team lent their valuable assistance during various stages of the book writing, editing, and publication.

To them all, I extend my gratitude and appreciation.

Sri Widowati

Country Director

Sri Lanka Resident Mission

Asian Development Bank

About the Authors

Jayantha Perera, MA, LLM, PhD, is a development anthropologist and a fellow of the Royal Anthropological Institute in London. He was the principal safeguard specialist of the South Asia Department at the Asian Development Bank (ADB) in Manila. From 2005 to 2011, he was the focal person for safeguards at ADB for the Southern Transport Development Project. In this capacity, he conducted surveys; prepared due diligence reports; and contributed to project planning, implementation, monitoring, and safeguard compliance review. His key areas of interest are involuntary resettlement, indigenous peoples, environmental law and practice, irrigation water management, and agrarian change. He has taught at several universities including the University of Oxford in the United Kingdom. He was the deputy director of the Agrarian Research and Training Institute and senior research fellow of the Institute of Policy Studies in Sri Lanka. He has authored many academic papers and several books, including New Dimensions of Social Stratification in Rural Sri Lanka, Conflict and Change: A Portrait of a Sri Lankan Village, An Introduction to Sociology, Classical Sociologists: Their Theories and Methods, and Irrigation Development and Agrarian Change. He edited Land and Cultural Survival: The Communal Land Rights of Indigenous Peoples in Asia, Transnational Culture and Expert Knowledge: Responses from a Rural Community in Sri Lanka, and Lose to Gain: Is Involuntary Resettlement a Development Opportunity?

Amarasena Gamaathige, MA, PhD, is a monitoring expert of large-scale infrastructure development projects in Sri Lanka, and a social safeguard consultant to the World Bank and ADB. He held senior positions at several agencies including the Open University of Sri Lanka, the International Water Management Institute, the National Development Bank, the Mahaweli Development Authority, and the Marga Institute. In 2002, he joined the Sri Lanka Resident Mission of ADB as a social sector/resettlement specialist. His engagement in the Southern Transport Development Project spanned over 12 years from 1998. He participated in the social impact assessments and the project feasibility study of the project. Later, he was the focal point at the Sri Lanka Resident Mission for monitoring of the progress of the project’s resettlement program. His professional interests include agrarian research, involuntary resettlement, university-level teaching, and project administration and monitoring. He has published several papers on distance learning, involuntary resettlement, and water management.

Chamindra Weerackody, BA (Sociology), is a social development consultant to ADB and the World Bank. He is a specialist in participatory development methodologies and has conducted sociological studies on rural poverty, gender, suicide, drug abuse, mental health and well-being, and postconflict issues in the northern and eastern regions of Sri Lanka. His current work includes poverty and social impact assessments; resettlement planning; social safeguard assessments; and planning for roads and transport, power, and urban infrastructure development sectors. He associated himself with the mediation processes conducted by the Office of the Special Project Facilitator of ADB in the Southern Transport Development Project and conducted a qualitative field study on the impact of the project on displaced women and their livelihoods. He contributed to the formulation of a guide for project implementers of transport projects in Sri Lanka titled Designing and Implementing Grievance Redress Mechanisms. He has authored or coauthored a number of books and research papers.

Abbreviations

Introduction

The social safeguard policies of multilateral development institutions fall within the broad framework of good governance which is premised on international law and international humanitarian law. As best practices of governance and development, these policies lead borrowers as well as clients to review and update their own development policies and legal frameworks to redefine and update entitlements of persons, households, and communities who lose their land and other types of property to public development projects. A best practice in governance and development is a principle that, through research and application, has proven to realistically lead to a desired result. A commitment to using a best practice is a commitment to using the knowledge and other resources to ensure success.

Generally, the state uses its eminent domain power to acquire private and communal land for development projects. Justification for using this power is derived from the role of the state in developing infrastructure facilities for public welfare. Accordingly, land needed for a public purpose is acquired after compensating the losses borne by the landowners and land users. The common public purposes for which private property is acquired under the eminent domain power are highways, irrigation systems, and power generation projects.

Parallel to the eminent domain power of the state and its development obligations to the citizens, international good governance practices present a person-focused development framework to safeguard the citizens’ interests, rights and entitlements. Many countries have progressively embraced internationally recognized best practices in development activities by paying equal respect to the state’s rights as well as the citizens’ rights, thereby creating an environment where good governance practices could be further developed and applied to a wide range of development endeavors.

Since the Declaration of the United Nations Conference on the Human Environment in 1972, a gradual shift from a state-centric approach to development to a people-centric one has gathered momentum. Clause No. 8 in this declaration states that economic and social development is essential to ensure a favorable environment for living and working and for creating conditions on earth necessary for the improvement of the quality of life. One of the seminal issues that emerged from the conference is the recognition of poverty alleviation as a tool for protecting the environment. International development institutions, such as the World Bank and the Asian Development Bank, have since then taken fighting poverty or eliminating poverty as their mission and programmed their operational policies to focus on this key issue. Under this, land acquisition and resettlement safeguard policies have been developed as a subset of operational policies focusing on combating the impoverishment of the people caused by the land acquisition and relocation of the people under development projects.

Parallel to the emphasis on poverty alleviation, infrastructure development to meet basic needs of populations such as transport, water and drainage, and electricity has also been accelerated. Such development programs necessitate acquisition of large areas of land from persons and communities and restriction of access to customary land. These two parallel development processes pose a challenge to the state in balancing infrastructure development with the improvement of the quality of life of those who are adversely affected by the relevant development programs.

The above parallel developments have generated some incongruence between national development goals and the individuals’ right to a decent livelihood, shelter, and social safety networks. The development literature in the 1980s and 1990s highlighted this incongruence and demanded a better strategy to ensure national development while safeguarding individual and community rights and welfare. For example, in the 1990s, numerous writings on the Sardar Sarovar Irrigation Project in India exposed the inadequacy of the local regulatory framework and safeguard policy frameworks of international development institutions to protect the project-affected peoples’ interests and rights, and to ensure their welfare. It also demonstrated the incongruence between national development goals and individuals’ interests, rights, and entitlements. This incongruence could be seen in the manner in which the Supreme Court of India upheld the state’s decision to construct the project for the benefit of the nation, despite its potential adverse project impacts, especially on displaced and vulnerable households. The Supreme Court made the following observation:

[t]he benefits of the project are so large that they substantially outweigh the costs of the immediate human and environmental disruption. Without the dam, the long-term costs for people would be much greater, and the lack of income sources for future generations would put increasing pressure on the environment. The project has the potential to feed as many as 20 million people, provide domestic and industrial water for about 30 million, employ about 1 million, and provide valuable peak electric power in an area with high unmet power demand….¹

This judgment summarizes the prevailing development model from the state’s point of view—that is, when the state has to balance the need for development for a larger public interest and the human rights of affected persons of such development, the former prevails over the latter. But the state has to minimize adverse development impacts on individuals and provide for regaining their affected life chances.² In fact, the project displaced 40,000 households in the three states of Gujarat, Maharashtra, and Madhya Pradesh. Of them, 56% were poor and vulnerable tribal households. The land that is given to them is uncultivable or waterlogged in hundreds of cases. Many more have not been given sufficient land. Many others have been given fragmented or encumbered land. Most sites do not have adequate drinking water or sanitation or health facilities. None of the sites have grazing land, fodder, or firewood (Himanshu 1999:1). Nongovernment organizations (NGOs) such as Narmada Bachao Andolan agitated on behalf of the affected people demanding the Government of Gujarat and the World Bank to review their respective approaches to mega irrigation development projects and to formulate better safeguard policy and regulatory frameworks to protect the project-affected peoples’ interests and rights. The World Bank responded positively to this demand from the project-affected persons (APs) and communities for the improvement of international safeguard policies. When formulating its own involuntary resettlement policy in 1995, ADB took into account the issues that arose in the project and the improvements introduced by the World Bank to its involuntary resettlement safeguard policy.

Involuntary Resettlement Safeguard Policies

Involuntary resettlement safeguard policies of multilateral development institutions such as the World Bank and ADB and bilateral development institutions such as the Japan International Cooperation Agency aim to minimize incongruence, if any, between national development goals and impoverishment risks of the APs arising from development projects. They try to do so by laying down key best practices in land acquisition and involuntary resettlement as safeguard policy principles, and providing detailed procedures on how to apply them in development projects.

In supporting infrastructure development projects, multilateral and bilateral development institutions recognize and accept the inevitability of physical and economic displacement of households and communities. Therefore, they emphasize the key involuntary resettlement safeguard policy principle: avoid involuntary resettlement, wherever possible, in their transactions with borrowers. Involuntary resettlement includes land acquisition, relocation, and rehabilitation of sources of income and livelihoods. Thus, the key message of the involuntary resettlement safeguard policies is that land acquisition and involuntary resettlement cause impoverishment, unless carefully planned mitigation measures are in place to combat them.

ADB approved a set of staff instructions on involuntary resettlement in 1986 and 1994. In 1995, ADB formulated its policy on involuntary resettlement. In 2009, it updated its involuntary resettlement policy, indigenous peoples policy (1998), and environment policy (2002) and combined them into an integrated Safeguard Policy Statement (2009). The involuntary resettlement component of the Safeguard Policy Statement focuses on land acquisition and resettlement aspects of development projects. It summarizes resettlement best practices such as the payment of replacement cost for