PAPUA NEW GUINEA ROAD MAINTENANCE AND REHABILITATION PROJECT (RMRP) II

Transcription

1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized PAPUA NEW GUINEA ROAD MAINTENANCE AND REHABILITATION PROJECT (RMRP) II Land Acquisition and Resettlement Framework (FINAL) VOLUME 2 February 2011

2 P a g e ii CONTENTS 1.0 Introduction Rationale The Legal Framework for Land Acquisition Land Acquisition Where Agreement is not Reached The Effect of Land Disputes on the RMRP II Resettlement Resettlement and Compensation Guidelines for the RMRP II Introduction Compliance with World Bank Requirements General Policy Framework Definition of Terms Resettlement/Rehabilitation Principles Eligibility Criteria Process for preparing and implementing Abbreviated Resettlement Plans Description of the Implementation Process Management Arrangements and Responsibilities Public Information, Consultation and Participation Costs and Funding Arrangement Monitoring Complaints and Grievances... 9

3 1.0 INTRODUCTION The Government of Papua New Guinea in conjunction with the World Bank is developing the Road Maintenance and Rehabilitation Project II (RMRP II), which would provide efficient, safe and reliable roads in the participating provinces through the: (i) rehabilitation and improvement of selected road segments and (ii) strengthening the institutional arrangements for road maintenance. The ten provinces are Central, Gulf, East and West New Britain, Manus, Oro, Morobe, Madang, Milne Bay and Western. The project would aim to: (i) rehabilitate and upgrade sections of the Hiritano Highway; (ii) rehabilitate, upgrade and maintain selected national roads and (iii) provide Technical Assistance for roads maintenance and capacity building to the National Roads Authority (NRA) and small and medium local contractors. At this stage, the project is anticipated to be over a three year period. In its first twelve to eighteen months of the project (2011 mid 2012), sections of the Hiritano Highway in Central and Gulf provinces will be rehabilitated and/or upgraded. In the remaining three or so years, RMRP II will rehabilitate, upgrade and maintain selected national roads and/or bridges. Detailed descriptions of the provinces and their roads are outlined in the Environmental Management Plan (EMP).The key development objective of the RMRP II is to restore satisfactory physical condition and safety to parts of the network of national roads in selected provinces based on priority needs. All of the RMRP II physical works projects will be implemented within existing road corridors owned by the Government of Papua New Guinea (GoPNG). Nevertheless, given the unalienated character of landownership in Papua New Guinea, and the importance of common property resources for village subsistence economies, it is a reasonable expectation that landowner issues could arise in the course of the implementation of the RMRP II. The purpose of the Land Acquisitions and Resettlement Framework (LARF) is to provide a channel of communication between works executants, the PNG government and relevant local communities. This will help to support active partnership of local communities in the work of the sub-projects and, where land acquisition and resettlement issues arise, to provide a procedure that will assist sub-project contractors and local communities to achieve negotiated settlements. The roles of the project s executing agency, the Department of Works (DOW) Project Management Unit (PMU) together with the subproject contractors, are highlighted here. The LARF is Volume 2 of the Environment and Social Management Framework (ESMF) for the RMRP II. 1.1 RATIONALE Land acquisition and resettlement is made unusually difficult in Papua New Guinea by a number of inter related factors. These include: The existence of complex systems of customary land tenure The existence of complex systems of customary leasehold rights The existence of complex systems of usufruct rights

4 P a g e 2 Land ownership is vested in primary corporate groups, such as clans, usually organized according to local kinship principles Diffuse or secondary ownership rights vested in kin groups linked by horizontal ties with corporate landowning groups Complex systems of individual usage rights within corporate land owning groups Kin-linked methods of traditional ownership transmission which join land to past, present and future generations Inheritance patterns which embody the concept of future generations trust Land ownership in Papua New Guinea combines, in a complex and culturally variable way, principles that are largely absent from modern systems of land ownership. Ninety seven percent of land in Papua New Guinea is still held under customary systems of land ownership. The intimate details of customary land and of many generations of land use are an integral part of the memory of the land owning group. At the core of these difficulties attendant to land acquisition lie the legal and moral differences between customary ownership and modern ownership. Land acquisition implies a transaction that has no equivalent in customary title. In the modern system a sale is once and for all. For traditional landowners in Papua New Guinea the terms and conditions of sale may be subject to review by future generations, descendants of the original sellers, who may seek to renegotiate the sale and impose new conditions not envisaged by either the original sellers or buyers. It is a mistake to attribute actions of this kind to landowner greed. For the majority of the population in Papua New Guinea land is their only significant resource and a very large proportion of the rural population depend on subsistence food production based on this land resource. This situation is unlikely to change for many decades into the future. With a high population growth rate, land is likely to become an increasingly scarce resource for many rural communities. The sale of land represents, in the vast majority of cases, the loss of the patrimony of future generations. Accordingly, future generations may be vigorous in their pursuit of redress of what they see as the inadequate land sales settlements of past generations. 2.0 THE LEGAL FRAMEWORK FOR LAND ACQUISITION Since the 1970s, Papua New Guinean legislation covering many aspects of land use, compulsory purchase, customary land dealing, customary land group incorporation, land dispute mediation, land lease and land titles has been enacted. There are now well recognised legal and policy procedures in place that conform to the requirements of the Constitution of Papua New Guinea and respect customary law and customary rights in land. The policy consistently followed in land matters in Papua New Guinea is that all transactions relating to land should first be conducted within the framework of a custom based mediation. Transactions should be based on a mediated agreement between the parties. After agreement has been reached the agreement may be ratified by a Land Court Magistrate and made an order of the court. Where parties cannot reach agreement, or where an agreement breaks down the court appoints two or more land

5 P a g e 3 mediators to assist the parties reach agreement. Land mediators are appointed in all provinces of Papua New Guinea and their services are generally available, when requested, by any party in dispute. When mediation is unsuccessful in producing an agreement between the parties the dispute is brought to the Land Court and heard by a Magistrate assisted by the Land Mediators. In addition to the Land Mediators appointed by the Courts, each provincial administration has a Department of Lands and several customary lands officers. These persons also assist in the mediation of land disputes and provide valuation services for the parties based on the Valuer-General s Compensation Schedule for Trees and Plants, All Regions, which is updated periodically. 2.1 LAND ACQUISITION Land ownership in Papua New Guinea implies not only ownership of land but also ownership of plants and trees. Ownership of land is usually vested in a group while ownership of plants and trees may be vested in an individual or a group. The owner or owners of plants and trees may not be the owners of the land. In some cases land may have been purchased for use as part of the road corridor and when not used for this purpose may have been used by its erstwhile traditional owners for cultivation or other purposes. The resumption of use of this land for road purposes may, in the minds of the traditional land owners be the equivalent to new purchase, or at least requiring compensation for the economic value of trees and plants on the land in question. In line with the World Bank OP 4.12, any person that illegally occupies the Right of Way (ROW) is still ineligible for compensation. However, if any house that needs to be relocated because of it being in the ROW would be eligible for compensation. Similarly, any crop that is damaged within the ROW would be compensated. Land Acquisition must begin with an inquiry which establishes the facts as they are understood by land owners in terms of their customary concepts of ownership and usage rights. An important role of the DOW is to assist in making sure that the landowner point of view on these matters is understood by the sub-project contractors. Land owner communities prefer that land matters be negotiated and that the transfer of land be subject to compensation payments. In the vast majority of cases these matters can be settled, to the agreement of all parties, on the spot, by using local value scales and the Valuer-General s list. The sub-project contractors, under direction of the DOW PMU, are expected to play a leading role in these negotiations and to facilitate outcomes which are acceptable to local communities and therefore not likely to give rise to conflict. The sub-project contractors are expected to closely liaise with the Provincial Lands Office and the DOW PMU. 2.2 WHERE AGREEMENT IS NOT REACHED Where agreement is not reached in a timely manner by informal discussion and negotiation with the subproject contractor then the matter should be referred to the Provincial Lands Officer. All efforts should be made to ensure that compensation payments are made prior to the commencement of works. This will ensure that any impacted livelihoods are compensated prior to impacts. Therefore, any outstanding matter should be resolved expediently to allow the project to proceed.

6 P a g e THE EFFECT OF LAND DISPUTES ON THE RMRP II The bypassing of land related disputes by putting them into the mediation process should be carefully monitored by the Project Engineer and the EPM. There are recorded instances where sub project work has progressed without any regard being given to the build up of a backlog of land cases, many of which may only come to a hearing five or more years after the contract work was completed. Without careful control and careful negotiation the value of the claims made may become very large and when these claims are met by the Government of Papua New Guinea effectively negate many of the economic benefits of the project in question. The most important thing to note in this regard is that compensation payments must be made prior to the commencement of works (i.e. prior to impacts being experienced). Therefore, any grievances or disputes need to be processed promptly so as to be able to ensure compensation payments are made prior to impacts, and works can proceed as scheduled. 3.0 RESETTLEMENT In most instances in Papua New Guinea resettlement is likely to involve land owners and the same issues arise as in the case of land acquisition. Resettlement is normally not possible without an extended and indepth negotiation process taking place and agreement being reached with those affected. Such an agreement will involve both compensation payments and, where necessary, the negotiated acquisition of suitable land for occupation by the resettled group. In some instances resettlement may involve the relocation of a group of persons who have settled on government owned land. Resettlement of these groups may lead to extreme conflict. This is why any negotiations on land or resettlement need to begin as early as possible in a project, as negotiations may take a long time. It is the view of the author of this report that the Constitution, laws and legal system provide adequate safeguards against misuse of land acquisition and the inappropriate use of force for resettlement purposes. However these matters are complex and often conflicting in character. It is recommended that sub project implementation be arranged so as to at all possible times avoid giving rise to anything other than minor land acquisition and resettlement. Where this is impossible sub project implementation should cease and the issues left to lie for mediation by means of the well-established Papua New Guinea mediation processes. 3.1RESETTLEMENT AND COMPENSATION GUIDELINES FOR THE RMRP II INTRODUCTION The project is not expected to cause land acquisition nor the relocation of people, buildings or other fixed assets. Minor infrastructure or the use of areas along the roads as deposits may, however, result in unexpected low-level impacts/damages to parcels of land, buildings and vegetation. In addition, road maintenance activities may require the temporary occupation of parts of plots or may cause crops or income losses to settlers and landowners along the roads. These Resettlement Guidelines have been prepared in order to ensure that unforeseen project impacts will be compensated in accordance to the World Bank s Operational Policy (OP) 4.12 on Involuntary Resettlement. The guidelines will be implemented within the context of this Land Acquisition and

7 P a g e 5 Resettlement Framework (LARF). The LARF will be translated into Tok Pisin and distributed as an operations manual to sub-project contractors who will be responsible for sub-project implementation. 3.2 COMPLIANCE WITH WORLD BANK REQUIREMENTS The laws of the GoPNG are broadly in line with the World Bank requirements under OP 4.12 except in these main areas: a) There is no accommodation to protect vulnerable groups in the PNG legislation. Therefore, RMRP II will include measures to ensure that vulnerable groups are not adversely impacted by the project 1, and b) In practice, in PNG payments to project affected people can be delayed for a considerable period. It is imperative that payments as a result of impacts in the RMRP II be made prior to impacts, i.e. prior to the commencement of works. 3.3 GENERAL POLICY FRAMEWORK Compensation issues linked to the RMRP II will be regulated by this LARF providing principles and instructions to rehabilitate persons, families, customary landowner groups and other organizations negatively affected by the project. The main objectives of this policy framework are to ensure that regardless of tenure status, the Project Affected Persons (PAP) will be assisted, where appropriate, so as to improve, or at least restore their living conditions, incomes, earnings and or production capacity to preproject levels, or, where appropriate, to provide for the payment of fair compensation that recognizes the loss of social capital of the landowning group and its participant clans, sub-clans, households and individuals. The policy framework is based on: a) The Constitution of the Independent State of Papua New Guinea b) The Land Act (1996) c) Land Disputes Mediation Act d) Village Courts Act e) WB OP 4.12 on Involuntary Resettlement The LARF does not contradict any clause of the state law. Where the law does not clearly determine a compensation policy the project will assume responsibility with respect to the PAP. 1 During implementation of RMRP II, the project will pay particular attention to vulnerable groups (such as the elderly, widows, women etc) to ensure that they are not disadvantaged or adversely impacted and are able to receive project benefits.

8 P a g e DEFINITION OF TERMS Project Affected Person (PAP) indicates any juridical person, being as it may an individual, household, a firm or a private or public, or a landowning group, or a part of such a landowning group who, on account of the execution of the project, or any of its components or sub-projects or parts thereof would have their: (i) (ii) (iii) right, title or interest in any house, land (including residential, agricultural, grazing land and land owned in common by a customary landowning group) or any other fixed or moveable asset acquired or possessed, in full or in part, permanently or temporarily, or business, occupation, work, place of residence or habitat adversely affected, or standard of living adversely affected. Land Acquisition means the process whereby a person or group of persons is compelled by a public agency to alienate all or part of the land they, she or he owns or possesses to the ownership or possession of that agency, for public purposes in return for fair compensation. Fair compensation means that where land and the use of land and the use of plants and trees and other vegetation growing on the land or other features of the habitat that are part of the rights and entitlements of the customary owner or owners is removed from their use or possession the compensation paid will be assessed as fair according to the custom norms and standards of the customary owners Replacement Cost means the value determined to be fair compensation for the replacement cost of houses and structures (current fair market price for building materials and labour without depreciation or deductions for salvaged building material), and the value of crops, trees and other commodities according to the Valuer-General s Compensation Schedule for Trees and Plants, All Regions. Relocation/Resettlement means the physical relocation of a PAP from his/her pre-project place of residence. Rehabilitation means compensatory measures provided under the Policy Framework other than payment of fair compensation for land or land-related loss or disturbance or replacement cost of acquired assets. Compensation means payment in cash or in kind to replace losses of land, housing, income and other assets caused by a project. 3.4 RESETTLEMENT/REHABILITATION PRINCIPLES The main principles of the policy are: 1. Impacts on land, buildings, livelihoods, crops, trees and other assets shall be avoided or minimized as much as possible. 2. When impacts cannot be avoided road maintenance operations shall be carried out in such a way as to minimize disturbances and damages to the PAP.

9 P a g e 7 3. All PAP are entitled to be paid fair compensation for their lost assets, incomes and businesses according to the relevant custom norms and standards ensuring they meet the standards of replacement cost (and supplemented to meet this standard when needed)to assist them to improve or at least maintain their pre-project living standards and incomes. Lack of legal rights to the assets will not bar the affected persons from entitlement to such compensation and rehabilitation measures. 4. Compensation for affected assets shall take into account such matters as the absence of a land market, the existence of common property rights regimes, the existence of multiple and overlapping rights to various kinds of land use among different groups and sub-groups, the loss to social capital caused by the alienation of such rights and the effect of such alienation on the inheritance of rights by future generations of the landowning group. 5. Payment of compensation for affected assets must be completed prior to start-up of civil works in a project. Eventual unforeseen impacts shall be compensated as promptly as possible and in accordance with the principles outlined within this section. 6. The project will ensure effective and timely design, planning, consultation and implementation of compensation and rehabilitation measures. 3.5 ELIGIBILITY CRITERIA The following stakeholders are eligible for compensation as a result of impacts from the project: (a) those who have formal legal rights to land (including customary and traditional rights recognized under the laws of PNG); (b) those who do not have formal legal rights to land at the time the sub-project is identified but have a claim to such land or assets -- provided that such claims are recognized under the laws of PNG or become recognized through a process identified in the resettlement plan; and (c) those who have no recognizable legal right or claim to the land they are occupying. 3.6 PROCESS FOR PREPARING AND IMPLEMENTING ABBREVIATED RESETTLEMENT PLANS If any land acquisition or resettlement impacts are identified, the sub-project contractort, in liaison with the DOW PMU is responsible for preparing Abbreviated Resettlement Plans (ARP) based on this LARF. These ARP will detail the process for compensation and serve as a record that can be monitored. ARP will be prepared once impacts are identified and prior to the commencement of works. ARP will be translated into local language and disseminated to stakeholders/ or available at an accessible location. ARP should be prepared in consultation with stakeholders, describing negotiated settlements regarding any project impacts. An abbreviated plan covers the following minimum elements: (a) a census survey of displaced persons and valuation of assets;

10 P a g e 8 (b) description of compensation and other resettlement assistance to be provided; (c) consultations with displaced people about acceptable alternatives; (d) institutional responsibility for implementation and procedures for grievance redress; (e) arrangements for monitoring and implementation; and (f) a timetable and budget. 3.7 DESCRIPTION OF THE IMPLEMENTATION PROCESS When a subproject in RMRP II is identified, the sub-project contractor is responsible for disclosing the project to the community and seeking their views, concerns and consent for the project. Whenever possible, stakeholder s inputs will be incorporated into project design. The RMRP II subprojects will aim to minimize as much as possible any impacts on people s land or people s assets. However in case impacts are identified, compensation and or livelihood restoration measures need to be agreed with communities. Payments must be made prior to the commencement of works (i.e. prior to impacts being experienced). The stakeholders impacted, the amount of compensation paid, the consultations process, etc, will be detailed in the Abbreviated Resettlement Plan as outlined in section 3.6 above. 4.0 MANAGEMENT ARRANGEMENTS AND RESPONSIBILITIES 4.1 PUBLIC INFORMATION, CONSULTATION AND PARTICIPATION Following the preparation of the maintenance plan for each road targeted by the project, the implementing agency (DOW PMU), through the sub-project contractors, will ensure that all districts and villages are properly and timely informed of the road maintenance activities to be carried out. Information to be provided will include type of work to be implemented, potential impacts, and schedules. The implementing agency will also ensure that the provisions of these Guidelines are effectively disclosed to the population living along the roads targeted by the maintenance plan. Community consultations will seek stakeholder s comments and suggestions with respect to appropriate compensation policies, works implementation schedules and community participation in minor works contracts. 4.2 COSTS AND FUNDING ARRANGEMENT All operational costs and payments relating to compensation for the loss of economic trees and food crops should be funded by the GoPNG. A special fund for compensation will be established within the Project Management Unit as part of Government counterpart funding for the Project. 4.3 MONITORING The monitoring should verify/assess the following: a) Verify that the baseline survey of project affected peoples is carried out, damaged assets have been valued, and compensation has been paid in accordance with the provisions of the LARF.

11 P a g e 9 b) Assess the delivery of compensation to ensure timely and fair payments. c) Assess the implementation and functioning of grievance mechanisms. This will include monitoring the nature of grievances lodged to identify trends, monitoring stakeholder satisfaction with outcomes, and tracking the responsiveness, and expedient resolution of grievances. 4.4 COMPLAINTS AND GRIEVANCES Complaints and grievances in respect of compensation payments for customary owned land must be referred to the Provincial Government District Lands Officer for mediation and settlement according to established Papua New Guinea land law procedures and processes. Complaints and grievances concerning all other matters may be taken by the PAP directly to the project or may be dealt with by an independent committee which should include: - The President of the Local Government Council - The Ward Member for the affected area - A Village Court Magistrate Complaints and Grievances issues will be addressed according to the following appeals process. Communities will be notified of this grievance process during consultations, and their inputs will be taken into account. Level 1 Level 2 Level 3 PAP addresses complaints and grievance to the independent committee If the Independent Committee cannot address the PAP s concerns to their satisfaction the PAP may request a formal village court hearing If no decision satisfactory to the PAP has been reached at the village court the PAP may appeal to the Magistrates Court for a hearing. [Note. Only persons subject to custom law jurisdiction have the right to appear in informal and formal village courts. The Project does not have the right to be a party to an action in this context. Legal representation is not allowed in village courts.] The Project has the duty to cooperate on a transparent basis with the committee and the village court and provide all information required to assist them to come to a decision.