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Vulnerable Groups and Land Issues in the North

Gayathri Lokuge

Presented by

Research Professional, Centre for Poverty Analysis (CEPA)

Dr Malathi de Alwis

Discussed by

Consultant Anthropologist, Consortium of Humanitarian Agencies (CHA)

Professor Savitri Goonesekere, Board

Chaired by

Member of the Centre for Poverty Analysis, Emeritus Professor of Law and a Director of the Centre for Women's Research (CENWOR)

Documentation of the discussion held on August 25, 2011 at the Centre for Poverty Analysis (CEPA) 29, Gregorys Road, Colombo 7, Sri Lanka

Introduction ......................................................................................................................... 3 Synopsis of the Presentation: Land related issues of vulnerable communities in the North: ....... 4 Discussion ........................................................................................................................... 8 Annex 01: Presentation Gayathri Lokuge........................................................................... 11 Annex 02: List of Attendees ................................................................................................ 18

CEPAs objective in hosting the Open Forum on Poverty every quarter is to provide a platform for groups of professionals to discuss their research and/or experience on poverty and related issues. The Open Forum also functions as a medium through which knowledge can be disseminated to a wider audience. Also it provides a space for professionals to discuss their research and/or work experience on poverty and related issues. The 45th Open Forum drew on a study conducted by CEPA from May-December 2010 on land related issues of vulnerable groups in the Northern province-specifically Mannar, Kilinochchi and Mulaithivu. It identified some of the vulnerable groups , the nature and different degrees of vulnerability, factors that contribute and/or aggravate land related vulnerabilities, local contextual specifics which exacerbate these vulnerabilities. It concluded by outlining recommendations to ensure inclusivity and , to facilitate and assist community engagement in the land related interventions in the North. The study was informed by an initial scoping visit to the field, and findings based on secondary sources and a more extensive primary data collection component comprising : a) a review of relevant literature, applicable policy and laws and, b) field research conducted in selected DS divisions of the three selected districts, Mannar, Mulaithivu and Kilinochchi in the Northern Province of Sri Lanka. This open forum aimed to: disseminate the study findings to an audience that is/will be working on land related issues in the conflict affected areas-specifically North create a discussion over land related issues and their implications for the people affected by conflict in the North

It featured a presentation by Gayathri Lokuge, Research Professional (CEPA) and comments by Dr. Malathi De Alwis, Consultant Anthropologist, Consortium of Humanitarian Agencies(CHA). The event was chaired by Prof. Savitri Goonesekere, Member of the Centre for Poverty Analysis, Emeritus Professor of Law and a Director of the Centre for Women's Research (CENWOR).The key points of the presentation and the discussion that ensued are documented below.

Synopsis of the Presentation: Land related issues of vulnerable communities in the North:
Gayathri presented findings from the study, highlighting the complexities in identifying vulnerable groups and factors that contribute to or aggravate existing vulnerabilities when there is loss of land or where access to private land is an issue. The presentation highlighted the current context in the directly war affected communities in the North: Land and territory in the north and east of Sri Lanka has been one of the root causes of dissatisfaction and conflict, and remains an extremely sensitive topic today. The massive displacement of people in the northern region, mainly in the Kilinochchi and Mulaithivu districts during the last stages of war, has further compounded matters and heightened concerns. On issues relating to land ownership, access, control and settlements, research findings in this study indicate a strong possibility for further aggravation brought on by the possibility of illegal occupation and multiple claims on the same plot of land for defense purposes and/or occupation by citizens. They also show a high potential for increased tensions among the vulnerable communities when the competing claims are from different identity groups such as long-term displaced Muslim internally displaced persons (IDPs) and Tamil communities. Unless proper policy and administrative mechanisms, documentation/recordkeeping processes and alternate, non-formal legal options are put in place to address disputes and grievances in connection with land, these inter-group tensions may intensify. Core factors considered central to the nature and character of relationships that surround land and land transactions in the North: Post-war, transitional environment with multiple waves of short term and long term displacement which has lead to issues of lack of land; primarily state land and loss of and/or non-access to private lands; Land as a highly contentious topic in terms of a vital capital asset which is a limited natural resource, a determinant of social status firmly entrenched in cultural roots and linked to communities/identity, is a key cause of conflict and is potentially volatile in the current process of rehabilitation and recovery efforts; Plural community concerns, and the dilemma of addressing displaced, returnee and resettling groups, sub-groups within diverse communities seeking access and claim rights to both residential and livelihoods-based land; Complexity of the legal/policy framework, and the multiple legal and administrative provisions that govern the implementation of land rights and entitlements in Sri Lanka in general. This complexity has created a confusion related to land rights among state officials and it leaves space for provisional, arbitrary or ad-hoc decisions. This in turn exacerbates the vulnerability of the citizens; Institution/state structures reflecting weakened capacity, lack of resources, (human/capital/technical) and vulnerability to political manipulations;

Vulnerable groups Communities that the study team visited were vulnerable as a whole due to the impacts of the protracted war in terms of loss of lives and property/asset destruction. Within this context, literature and key person interviews with development practitioners identified vulnerable sub groups- caused by socio-economic conditions in the aftermath of the war such as widows and female headed households, elderly, orphans and families with disabled family members. For these groups land related issues add another layer of vulnerability which has negative short term and long term implications on their overall wellbeing. Another vulnerable sub group could be identified-caused by lack of access and ownership of land; such as Muslim IDPs who were expelled in 1990 and second and third generation IDPs to name a few. However, categorization into specific vulnerable groups is an artificial and sometimes an impractical exercise because there are common instances where households or individuals fall into more than one category of vulnerability. The lack of capacity-technical and human resources- of the state officials in the post war context to respond to the complex situation exacerbates these vulnerabilities. The study also highlights the manner in which aid/development projects deal with land related issues which in turn compounds the vulnerabilities because the landless are being excluded based on the beneficiary selection criteria. Land related issues Landlessness (issues of returnees) Lost and damaged documentation pertaining to ownership/right to land (at individual and institutional level) Different land distribution schemes and transactions (LTTE land distribution, Kaithundu transactions, Japan deeds) Destruction of Boundaries Secondary occupation (people, military-private, state land) Demarcation of Archaeological and Sacred Sites Issues of succession due to delays in registration of deaths

Conclusion Caution should be exercised in designing and planning processes and implementing landrelated aid/development programs that could potentially aggravate existing vulnerabilities given the legal, policy and donor funding frameworks, which in certain cases have not been adjusted to suit the needs of the protracted conflict situation in the north. The commonly used categories of vulnerable groups such as elderly, female headed households, families with disabled people for development programming is not sufficient for programmes dealing directly or indirectly with land issues. Development actors should understand the deeper, horizontal sub divisions such as recently displaced and protracted

displacement, type of land holding etc. and act upon this understanding in development planning. The state or non-state authorities addressing contentious land-related issues in a post-war situation need to work closely with the community-based organizations (CBOs) to build/earn the trust of people where the trust is broken because of the decades of violence in the past. Vulnerable groups in a post-conflict/conflict situation are familiar with the people associated with CBOs, trust them and know when, where and how to contact them. It is also important to understand, acknowledge, recognize and incorporate the locally available traditional dispute resolution methods which increase access, trust, participation and negotiation positions of vulnerable groups in the design and implementation of any land related programme in cooperation with the responsible state authorities. Successful land access and ownership regularization will have an impact on the well-being of the vulnerable communities in the north. A monitoring of these land access and ownership-related impacts over the next two to three years will also provide indications on the effectiveness and efficiency of land regularization processes. Some possible indicators that link land and community well-being are more investment in land which results in higher production/productivity, increased income/expenditure, increased savings and reduction in debt; in short, an overall improvement in quality of life of vulnerable communities in the north.

Comments by Discussant: The Open Forum featured Dr. Malathi De Alwis, Consultant Anthropologist, Consortium of Humanitarian Agencies (CHA),as the discussant. She highlighted the fact that land is a critical issue in Sri Lanka today and one which has a huge impact on resettlement and relocation as well as on the larger framework of equitable power sharing and reconciliation. Land has been written about for a long time. In the recent context several reports have been written during the ceasefire and the tsunami. There have been many efforts to document issues and to push for policies. However, in depth research such as the studies done by Dr. Gananath Obeysekera in the past, are yet to be conducted. The importance of in depth research has been brought out by Gayathris presentation. The report, and current research, enables people to work with existing research and go deeper into these issues. Dr. de Alwis stressed the need for more in depth research, such as this study, into land issues of the recent past in order to address crucial issues of multiple layers of vulnerability and how they work at a micro level; as well as to address how larger structures at a macro level engage with the people. She further stated that the focus on land issues in the North often leaves out the environmental and cultural impacts taking place and these too need to be focused on. Environmental groups are raising questions about the issues taking places: deforestation and construction of roads in national parks, sand mining (CPA report), banana cultivations etc. and the impunity with which they are taking place. These issues need to be addressed and researched so as to focus national attention on them. 6

She also explained the recent cultural issues related to land, in the north. Two weeks ago the Sunday Leader news paper has reported Buddhist statues being built along the A9, replacing Hindu kovils. There is also great concern in Jaffna about old heritage buildings being demolished to make way for expressways. These instances show that the politics of development are encroaching on heritage; something not greatly observed in the South. These kinds of actions create the space for conflict. Then the question is what can civil society do? We need data: how many displaced? How many wounded? The number of land disputes, the number resolved, the number of female headed households etc. Also she said that this study looks at the bimsaviya initiative, pilot workings in Anuradhapura. It needs to look at state initiatives and what different organizations are working on. The problem with current research is that there is replication without understanding on how to intervene. Civil society can also contribute towards legal activism (Sumanthiram vs.bimsaviya), country planning initiatives etc. Comments by Chair: The Open Forum was chaired by Prof. Savitri Goonesekere, Member of the Centre for Poverty Analysis, Emeritus Professor of Law and a Director of the Centre for Women's Research (CENWOR). In her comments, Professor Goonesekere emphasized the need for accurate reporting as there is a lack of information and access to information. At present, the country is faced with various issues and there is a disjunction between these issues and the public awareness of them, due to lack of information, which is why reporting is important. Historically, there had been issues with land, for example in the Kandyan province, but there was documentation and research from land commissions which shed light on these issues and on which remedial action was based. However, currently, the land commission does not function and no research takes place. There is also an undermining of professional insights due to political forces. The State has an obligation of accountability towards its citizens. The significance of a Right to Information Act in such circumstances is important in documenting the views of the people and creating a system of accountability. It is important, as the presentation showed, to document the responses of people, integrate them, and learn from the insights of communities. She further stated that the study presented at the forum also highlights the issues of citizenship and marginalization. The term vulnerable gives a patriarchal protection meaning; perhaps marginalization could be the better term to use. We need to call for state accountability: for people to get equal access to rights and re-establish livelihoods. We need to focus on marginalization and eliminations of it. We currently have a framework that differentiates between private and state property. Private land distribution occurs in complex ways, through inheritance etc. However, regarding State land, there needs to be accountability on the part of 7

the State, as the concept of restitution in the distribution of state land is different from private land, as in the Southern Transport Development Project (STDP). The State should take a proactive role here, using learnings from the British era of land loss. For private land issues, we need to consider that deeds are private property-oriented. Therefore the loss of deeds needs to be addressed using new methods. To resolve the current issues, including lack of information, we need good, insightful land commissions which include researchers, and community participation.

The discussion highlighted several issues. Q: The findings did not talk about fundamental caste issues affecting land transactions creating additional marginalization? There was also no mention of a new breed of intermediary??? Which is the military which act as an additional level to the decision making between officials and community? There have been various instances where members of the diaspora arrange with the military to get their property back (laws being practiced through forces). A: We did try to look at caste differences and implications in relation to land, as well as excombatants but we couldnt capture these groups and elements because of the methods and tools used for primary data collection, which werent conducive to unearth these issues. However, we did hear anecdotal evidence while on the field, and the issues did come up in the secondary literature reviews as well, but not in the primary data. We also came across the issue of the military as intermediaries. It creates additional delays in some instances because officials have to go through an extra loop when trying to get development assistance to the village or any document related work. Comment: Some people have land deeds to houses that are no longer there. They are asked to show proof that a house existed through permits signed by the authorities. How can these people produce proof of approval for housing which does not exist? Q: Ownership/possession of land is a fundamental idea. In the present context who should have the right to possess their own land? Throughout history land has been acquired and taken control of to be exploited. The British exploited land for profit and it was done in a destructive way, by destroying the ability of land to regenerate itself. We need a requirement for regeneration of land; to restore the ability of nature to regenerate itself. This has to be facilitated in the discourse. New development thinking has to consider restoring this ability of nature to regenerate itself. People who live on any area of land are the people best capable of regenerating that land. People who allow this have the right to control that land. 8

A: This aspect was not considered in the study. Comment: How serious is the State in the rehabilitation of IDPs? They have to be the catalyst but have not been so far. Q: The Southern highway has displaced many people without being paid compensation, there has been lots of disagreement regarding this, has that been addressed? A: The compensation process for the STDP was comprehensively documented by CEPA, and yes, the displaced and resettled people were all compensated. Comment: Has the State rehabilitated plantation lands? Historical experiences give us insight as to how to proceed. Q: Who reads these reports? Who have the reports been addressed to? What are the solutions? Comment: There are quite a lot of reports, but no synthesis. We have a fairly good analysis of the Mahaweli project. The last land commission report was in 1987, but after that it has been all ad hoc reporting, which makes it difficult to get an overall picture and ask conceptual questions. We cant find solutions without that. Comment: Role of the Statethe State policy framework for distributing land in the past is gone. The Mahaweli was the last one. The States behavior shows they dont want to put anything back in place. It is good to remember this when doing research. Comment: Private property rights are getting restored pretty fast, partly due to the middle class who have access to lawyers; this is another form of inequality. Comment: The Principle of prescriptive rights still stands. If you have adversely possessed a land for 10 years or more you can make a case claiming ownership Comment: There are 2-3 instances where provincial councils were consulted on urban developments and a few eviction cases have gone to court, which are all examples of holding state accountable. Comment: Regarding documentation, the problem is how to make sure everyone reads it? The report produced by CPA titled Land Issues in the Northern Province: Post-war politics, policy and practice discuss the role of marginalized groups and the issues that they face in accessing or retaining their land such as repercussions for people who were pro LTTE. Documentation is very important because too often cases are very vague, and it is useful in 9

the case of vulnerability to get these issues on the agenda. The fact that the LLRC report doesnt recognize displacement before 1984, and doesnt look at the Vanni displacement from riots is telling. Part of the problem is groups working with the State have their own prejudices. How do you get them to acknowledge these vulnerabilities- the social structure of vulnerability? What are the politics of vulnerability that you came across? It is a key issue that needs to be worked on. How do you get people to work on it/be sensitive to it, because there are various levels of discrimination going on in the projects? A: The report was focused on drawing out issues of vulnerability and trying to understand people-state-private interactions. We did not analyze this question but our impressions were there are tensions between State authorities and communities (GN etc), as well as in terms of disputes and conflicts among and within groups. Q: Why is Jaffna district excluded in the study? Without that you cant get a full picture of vulnerabilities, caste issues etc. in the North. A: The study was done for a client. The client focused on Mannar, Mutative and Kilinochchi. Q: Have you come across instances where military occupation of land leads to vulnerabilities? A: We did come across military occupation of land. Another interesting point we came across was that people displaced in Mulaithivu and Kilinochchi were from various other parts of the country. They could converse in Sinhala, which we did not expect.


Annex 01: Presentation Gayathri Lokuge








Annex 02: List of Attendees

Name 1. S.J.M.N Samarakoon 2. Sonali Dayaratne 3. Azra Abdul Cader 4. Zihan Zarouk 5. Nijananthy Sivanathan 6. Brian Martin 7. Asanga Ranasinghe 8. Luwie N. Ganeshathasan 9. N.Devanesan 10. Chandula Kumbukage 11. Chamindry Saparamadu 12. Bettina Maier 13. Savitri Goonesekere 14. Chandra Jayaratne 15. Sunil Bastian 16. N Ravikumar 17. Dirk Kruimer 18. Puvaneswary Ponniah 19. Bhagya Rajapakse 20. Himy Ahmed 21. Anushya Coomaraswamy 22. D.N.A.H.D.Neththasinghe 23. H.K.D.S.Gunawardane 24. Tanja Leipold 25. Nicky Bostan 26. Anita Nesaiah 27. Chris Nixon 28. Adam Schminr 29. W.Chris 30. Chamindra Weerackody 31. Jaime Royo 32. Kaushalya Aryaratne 33. Nilani De Silva 34. S. Morrell 35. M.A.Yasir Arsath 36. Sarath Fernando 37. Vishaka Hidellage 38. Selvy Sirikanthan 39. Vimarsha Salpage 40. Lakwi Perera 41. Chulanee Attanayake 42. Aslam Saja 43. Charitha Ratwatte Junior 44. Rohini Singoroyer 18 Organization University of Sabaragamuwa UNDP UNDP UNDP Christian Aid Christian Aid Plan Sri Lanka Centre for Policy Alternatives Centre for Policy Alternatives Centre for Policy Alternatives Attorney-at-law FES CEPA Board member CEPA member CEPA member Attorney-at-law Embassy of Netherlands CARE YATV YATV APCAS APCAS APCAS National Peace Council CARDNO USAID USAID EU Delegation CSHR, University of Colombo CSHR, University of Colombo ISLAND NISP MONLAR Practical Action University of Colombo NISD FRC LST ECHO Rural Returns (pvt) Ltd FAO

45. A.T.Lesly 46. Mohomed Bilal 47. A.Zahab 48. Dawn Hayden 49. Hiran Dias 50. Priyanthi Fernando 51. K.Romeshun 52. Geetha Harshini 53. Amila Balasooriya 54. Tehani Ariyaratne 55. Nadhiya Nadjab 56. Nayana Godamune 57. Chathuranga Weerasekara 58. Kishani Cader 59. Juanita Wickramaratne 60. Roshini Alles 61. Mohomad Munas 62. Karin Fernando 63. Basith Inadeen 64. Udaya Gunaratne 65. Sumith Priyashantha 66. Abeyratne Banda