Lose to Gain

Is Involuntary Resettlement a Development Opportunity?

Jayantha Perera

• Publisher: Asian Development Bank
• Year: 2014
• Print ISBN: 9789292543556
• eBook ISBN: 9789292543563
• Topic: Economics
• Subtopic: Development Economics
• Index: Economics

A crucial issue that confronts development in South Asia is how to build a better life for people displaced by infrastructure development projects. This book comprises recent displacement and resettlement case studies conducted by eight anthropologists in South Asia. Each contributor wrote around the key theme of the book: Is involuntary resettlement a development opportunity for those displaced by development interventions? In this book, "resettlement" carries a broader meaning to include physical and economic displacement, restricted access to public land such as forests and parks, relocation, income rehabilitation, and self-relocation. The book demonstrates that despite significant progress in national policies, laws, and regulations, their application still requires more commitment, adequate resources, and better supervision.

1. Introduction

by Jayantha Perera

An act to ensure a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement, and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post-acquisition social and economic status and for matters connected therewith or incidental thereto. (Government of India 2013,1) (emphasis added).

The Land Acquisition Act, 1894 of British India still directs and controls the acquisition of private land for a public purpose in South Asia. Its origins go back to the 1824 Regulation I of the Bengal Code, approved by the colonial authorities to enable the acquisition of land at fair value for roads, canals, or other public purposes and to secure land for the purpose of salt manufacture (Gupta 2012). It sets the legal framework and detailed procedures, and is backed by a large volume of case law.

Bangladesh, Pakistan, and Sri Lanka adopted the key legal principles and processes of the Land Acquisition Act in enacting their own land acquisition and compensation laws. Through its close association with India, Nepal, although not part of the former British Empire, also adopted the principles and procedures of the act as its own land acquisition and compensation legislation.

Although compensation packages and opportunities for negotiation on compensation and resettlement assistance available for those affected by land acquisition vary from country to country within South Asia, several key common principles have remained intact. First, the state may claim the right of “eminent domain.” This means the state can acquire any private property for a public purpose regardless of whether the property owner is willing to sell or not. Second, only titled landowners receive compensation for private property lost to a public purpose. Tenants, squatters, encroachers, leaseholders, and other categories of land users will not be a party to compensation negotiations and settlement, although they could receive different types of assistance to recover their losses. Third, the state can acquire land without prior notice if such acquisition is deemed necessary for the security of the country or to deal with an emergency such as flooding. In such instances, 48 hours’ notice is considered sufficient, and the determination and payment of compensation for the acquired private land will take place after the land is vested in the state. Fourth, cash compensation for acquired property is calculated based on the market value of the property, which is the sum considered sufficient to buy new property or to restore sources of income and livelihoods affected by such acquisition.

Development of Involuntary Resettlement Policies

International development agencies, such as the Asian Development Bank (ADB) and the World Bank, have participated in the resettlement debate, and have helped to articulate key issues in partnership with borrower countries. Their participation in such debates has been encouraged by the rapid growth of international law, especially international environmental law and human rights law, starting with the Stockholm Declaration on the Human Environment in 1972. The public debates on societal processes that lead to sustainable development gathered momentum with the publication of the Brundtland Commission Report in 1987. The Rio Declaration on Environment and Development and Agenda 21 of the United Nations Conference on Environment and Development in 1992, and the draft Declaration of Principles on Human Rights and the Environment of 1994 played key roles in these debates. One key outcome of the debates is the realization that a society becomes sustainable when it is based on the volition of individual human beings, not on the results of “an enforceable legal prescription” (Zoeteman 2012, 4).

Since the 1980s, international development agencies have developed their own policies on involuntary resettlement, indigenous peoples, and environment to identify, prevent, minimize, and mitigate the social and environmental harm of the development interventions they support. Such policies were labeled “safeguard” or “do-no-harm” policies. ADB, for example, approved a set of staff instructions on involuntary resettlement in 1994. In 1995, ADB formulated its Involuntary Resettlement Policy (ADB 1995). In 2009, it updated the Involuntary Resettlement Policy, Indigenous Peoples Policy (ADB 1998), and Environment Policy (ADB 2002) and combined them into one Safeguard Policy Statement (ADB 2009). The African Development Bank as well as several bilateral development agencies such as the Japan International Cooperation Agency and the Australian Agency for International Development followed suit.

In supporting infrastructure development projects, international development agencies recognize and accept the inevitability of displacement of some households and communities, although the key principle of involuntary resettlement policies is to “avoid involuntary resettlement wherever possible” (ADB 2009, 17). The involuntary resettlement policy of the World Bank elaborates this principle fully: “Involuntary resettlement may cause severe long-term hardship, impoverishment, and environmental damage unless appropriate measures are carefully planned and carried out.” Therefore, the overall objectives of its policy on involuntary resettlement are:

i.	Involuntary resettlement should be avoided where feasible, or minimized, exploring all viable alternative project designs.
ii.	Where it is not feasible to avoid resettlement, resettlement activities should be conceived and executed as sustainable development programs, providing sufficient investment resources to enable the persons displaced by the project to share in project benefits. Displaced persons should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs.
iii.	Displaced persons should be assisted in their efforts to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre-displacement levels or to levels prevailing prior to the beginning of project implementation, whichever is higher (World Bank 2001; 2013, Section 2).

The International Finance Corporation (IFC) of the World Bank Group issued its revised and updated Performance Standard 5 on Land Acquisition and Involuntary Resettlement in 2012. This is the most recent and most comprehensive safeguard policy framework for involuntary resettlement. The IFC emphasizes that the government of a country has a central role “in the land acquisition and resettlement process, including the determination of compensation, and is therefore an important third party in many situations.” At the same time, it suggests that “to help avoid expropriation and eliminate the need to use governmental authority to enforce relocation, clients are encouraged to use negotiated settlements meeting the requirements of this Performance Standard, even if they have the legal means to acquire land without the seller’s consent.”

Hence, international development agencies have progressively developed a comprehensive involuntary resettlement policy framework that is friendly toward project-affected persons and communities as it aims to avoid their impoverishment, hopelessness, and disarticulation. However, as discussed in several chapters of this book, this resettlement framework focuses more on the procedures and processes of how to help persons that are already displaced than on the need to widen their scope to include the processes of displacement starting at the planning phase, followed by post-project resettlement support and services. Dwivedi (2002) called the current dominant approach to involuntary resettlement a “reformist-managerial” approach to development. It takes mainstream development as given, and displacement as an unfortunate phase that some people have to undergo to achieve development benefits for all. Thus, displacement together with resettlement is a social equalizing process that makes the world a better place to live in; in other words, a development opportunity for all, especially for those who have lost their property, livelihood, and social networks to a development intervention.

The tendency is to normalize displacement as a consequence of development that has happened in the past and will happen in the future. The concern of this [approach] is to minimize the adverse outcomes of displacement. As a result resettlement becomes the main problem area… Since resettlement is the focus, its inadequacies and failures become main areas of concern. The search is for effective ways of designing and handling resettlement for which appropriate legal, managerial and policy frameworks are sought (Dwivedi 2002, 720).

Competing Involuntary Resettlement Frameworks

During the past 40 years, South Asian countries formulated comprehensive domestic environmental policies and enacted environmental laws. Such policies and laws took environment protection and sustainability as their primary objectives reflecting the heightened focus of the international community on international law and especially on international environmental law. As a result, domestic environmental policies and laws included land acquisition and resettlement of project-affected households as issues pertaining to environmental sustainability. Sri Lanka’s National Environmental Act, 1980 and India’s Environment (Protection) Act of 1986 are two examples of this all-inclusive legal framework in which involuntary resettlement is treated as an environmental issue, based on the close relationship between the environment and human society.

The inclusion of involuntary resettlement in the general field of environment has positive and negative outcomes. In most South Asian countries, land acquisition and compensation occupy the center stage of development projects. Relocation, income restoration, and rehabilitation of project-affected persons are not specifically addressed by domestic legal systems, but are generally included in environmental impact assessments. Because of this, persons affected by development interventions can seek recourse in a court of law if they are not consulted before their displacement or if the project fails to provide them with sufficient resettlement assistance. This is the positive aspect of incorporating involuntary resettlement in the environmental legal framework. The negative aspect of such incorporation is that it limits the scope of involuntary resettlement to the do-no-harm principle without stressing the importance of restoring and improving income and livelihood of affected persons. Development interventions are not only expected to do no harm to the environment, but also to ensure that the affected persons of such development interventions have opportunities to improve their life chances, or at the very least to restore them.

Partly in response to improvements in local good governance based on rapidly developing international law and international humanitarian law, and partly in response to the assistance received from international development agencies to improve local capacity in involuntary resettlement safeguards, South Asian countries during the past 40 years have also shown interest in improving and updating their land laws, land acquisition regulations, and compensation and relocation methodologies. Despite genuine attempts that reflect countries’ commitment to develop humane and fair land and resettlement laws, South Asia as a whole has failed so far to revise and update its land acquisition laws. Chief among difficulties encountered are resistance from landholders and politicians, bureaucratic apathy, and the complex legal procedures involved in such revisions and updates. As a result, instead of reforming land acquisition laws, which would substantially change the core principles of land acquisition, compensation, relocation, and rehabilitation, governments find it much easier to introduce involuntary resettlement policies, regulations, guidelines, and frameworks to recognize some rights or entitlements that development-induced displacement and resettlement processes are likely to affect. This approach enables them to achieve some equivalence with international best practices in involuntary resettlement.

The involuntary resettlement policies of Bangladesh, India, Nepal, and Sri Lanka are more or less compatible with those of international development agencies, particularly ADB and the World Bank. In order to obtain development assistance from an international development agency, a borrower has to agree to follow the international best practices enshrined in the agency’s involuntary resettlement policy in addition to following its own involuntary resettlement policy and laws. Each country has also received technical assistance either from ADB or the World Bank to formulate its own involuntary resettlement policy and improve local capacity to implement it. These national involuntary resettlement policies reflect the general principles and procedures of the involuntary resettlement policy of the international development agency which supported the formulation of the national involuntary resettlement policy. The National Involuntary Resettlement Policy of Sri Lanka (2001), for example, was formulated by adopting the principles of the Involuntary Resettlement Policy of ADB. A country that has adopted involuntary resettlement policy principles and procedures of an international development agency in formulating its own involuntary resettlement policy tends to apply it only to development projects or programs funded by the agency. Locally funded projects and programs usually follow only the local laws and regulations pertaining to involuntary resettlement. The presence of two involuntary resettlement frameworks could create competing safeguard approaches to land acquisition, compensation, and rehabilitation of affected persons.

Scope of Involuntary Resettlement Safeguard Policies

The involuntary resettlement safeguard policies of international development agencies and their counterpart policies in South Asian countries focus mainly on how to minimize or mitigate traumatic experiences of physical and economic displacement. They also aspire to convert displacement into a development opportunity for those who are displaced. National legal frameworks for land acquisition, compensation, and rehabilitation, on the other hand, deal with households’ displacement trauma through limited cash compensation and rehabilitation assistance. Although there has been substantive improvement in land acquisition, compensation, and rehabilitation policies and land laws in recent years in South Asia, converting the deep and prolonged trauma of physical and economic displacement into a development opportunity is an aspiration that has not yet been achieved. The findings of in-depth fieldwork associated with each case study of this book reaffirm this conclusion. This will be the case until involuntary resettlement policies are updated and converted into involuntary resettlement laws, and adequate local capacity is developed to implement them in each country. In this regard, India is ahead of other South Asian countries. Its comprehensive Land Acquisition and Rehabilitation and Resettlement Bill was passed by the Parliament in 2013 after many years of debate and consultation (Government of India 2013).

Objectives of the Book

Resettlement policies and laws in South Asian countries at present focus primarily on compensation payment for property acquired for a public purpose. This book assesses the adequacy of conventional compensation and resettlement assistance programs such as cash-for-land, land-for-land compensation, limited and temporary employment opportunities at project construction sites, better housing in urban development projects, and income and livelihood restoration and improvement assistance programs. It also examines affected persons’ perspectives, how they perceive their displacement, and what strategies they use to respond to displacement with or without assistance from project sponsors and authorities. This knowledge will help policy makers, project sponsors, and project executive agencies to improve resettlement planning and implementation programs and, at least to some extent, will assist in reforming resettlement policies and land laws. Such reforms, this book argues, should consider (i) the adequacy of current resettlement policy frameworks to deal with complex, widespread, and ambiguous experiences of affected persons of development interventions; (ii) the almost inevitable impoverishment of project-affected persons from the pre-displacement phase to post-resettlement phase; (iii) limited state commitment to broadening such policy frameworks into national laws; and (iv) widespread weak institutional capacity to implement the laws.

During the past 60 years, various interpretations of the land acquisition acts have been attempted by policy makers, academics, development practitioners, nongovernment organizations (NGOs), and national courts in South Asia. Such interpretations have mostly been people-centered and have intended to provide a better compensation package to the displaced, particularly to poor and vulnerable persons. Key issues that have been discussed and articulated include (i) the adequacy of consultation with affected persons and communities on land acquisition and compensation; (ii) the comparative costs of cash-for-land and land-for-land compensation as acquisition modalities; (iii) the desirability and possibility of assisting physically displaced households to resettle at a project-sponsored resettlement site compared to providing sufficient cash compensation and incentives to help displaced households self-relocate; and (iv) how to avoid impoverishment of displaced persons and their households. These are also the key issues that this book considers, using in-depth fieldwork from several South Asian countries.

The book comprises recent displacement and resettlement case studies conducted by several anthropologists and sociologists in South Asia. Each contributor wrote around the key theme of the book: Is resettlement a development opportunity for those displaced by a development intervention? In this book, resettlement carries a broader meaning to include physical and economic displacement, restricted access to public land such as forests and parks, relocation, income rehabilitation, and self-relocation.

Structure of the Book

The book is structured broadly into three parts. Chapters 2, 3, 4, and 5 examine the current scope of involuntary resettlement policies, laws, and regulations in South Asia to identify the areas that are not suff...

Table of contents

• Front Cover
• Title Page
• Copyright Page
• Contents
• Foreword
• Acknowledgments
• Abbreviations
• Contributors
• 1. Introduction
• 2. Negotiating Impoverishment Risks through Informal Social Structures and Practices
• 3. Displacement through Limiting Access to Forests: A Socio-Legal Analysis
• 4. Living Displaced: Post-Displacement Livelihood Strategies of Displaced Muslims in Sri Lanka
• 5. Resettlement Planning and Pre-Displacement Impoverishment
• 6. Why Compensation Is Not Enough to Make Resettlement a Development Opportunity?
• 7. Reconstructing and Improving Livelihoods among the Urban Displaced: Lessons from Mumbai, India
• 8. Income Restoration and Livelihood Development: Impoverishment Risk or a Development Opportunity?
• 9. Compensation, Replacement Cost, and Post-Resettlement Impoverishment
• 10. Development-Induced Displacement and Resettlement: Experiences of the People’s Republic of China and India
• Index
• Back Cover