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

Transcription

1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized PAPUA NEW GUINEA ROAD MAINTENANCE AND REHABILITATION PROJECT (RMRP) II Additional Financing October 2013 RP1504 Land Acquisition and Resettlement Policy Framework (LARF)

2 P a g e ii CONTENTS Executive Summary... iii I Description of the project... 1 II. Objectives and Principles governing resettlement and land acquisition... 1 III. Process for preparing and approving resettlement plans... 3 IV. Eligibility Criteria... 3 V. Legal framework and Bank policy... 4 VI. Participation and consultation... 7 VII. Complaints and Grievances... 8 VIII. Resettlement funding arrangements... 9 IX. Monitoring... 9 Annex... 10

3 P a g e iii EXECUTIVE SUMMARY The proposed Land Acquisition and Resettlement Policy Framework(LARF clarifies the resettlement principles and organizational arrangements to be applied to address any adverse social and economic impacts that may result due to involuntary of assets and changes in land use in the sub project areas of the Road Maintenance and Rehabilitation Project II Additional Financing (RMRP II AF). The LARF also includes provision for compensation and rehabilitation assistance and follows the requirements for the Involuntary Resettlement Policy, OP/BP 4.12 of the World Bank assisted projects. The project s development objectives of the RMRPII AF are to (i) improve road transport to project areas through providing satisfactory physical condition and safety in selected roads; (ii) strengthen institutional arrangements for road maintenance including the participation of the private sector and communities; and iii) enhance road-related economic activities for women. Ten provinces in Papua New Guinea are eligible under the RMRPII AF and include Central, Gulf, Western, Milne Bay, Oro, Morobe, Madang, West New Britain, East New Britain and Manus). The East Cape Road in Milne Bay has been identified as a Year 1 project. The sub-project activities are not expected to involve expansion or change in alignments that would require acquisition of new land. For any sub-project where involuntary resettlement or land acquisition is unavoidable, the GoPNG is expected to carry-out sub-project resettlement plans to address the magnitude and complexity of resettlement and land acquisition and to take all necessary measures to mitigate adverse social and economic impacts. Sub-project resettlement plans will be prepared so that all the necessary steps in determining the extent of the resettlement of people or property are documented and following from that an appropriate package be offered to those affected. The Government of Papua New Guinea will be responsible for concluding this process of settling the affected persons. This Resettlement Plan will be translated into Pidgin or Motu where applicable and made available stakeholders within the sub project area. There is also the eligibility criterion that determines whether any person or group is able to receive any assistance and this will be strictly adhered to. All these will be administered within both the Government of PNG and World Bank Legal Framework and hence is legally binding.

4 P a g e iv Communities from the area(s) of the sub-projects will be consulted as to ensure broad community support and that there are no pending issues such as disputes or affected families with the current alignment and Right of Way (RoW). A formal grievance redress mechanism will be established with support from both DoW 1 I and the Provincial Works Units of the project areas. Monitoring of any grievances will be recorded and addressed. These link in well with the established governance structures in the Ward and Local Level Government where it reinforces the devolution of functions and responsibilities as per the Organic Law on Provincial and Local Level Government enacted in Responsibilities of all affected persons as defined in the Annex are safeguarded with also those for the sub-contractor and an amicable outcome is desirable for all parties. A section for Resettlement Funding Arrangement is stated here and the Department of Works should be consulted for this arrangement if any genuinely affected person requires that assistance,. 1 Department of Works and Implementation, although Department of Works are still using DOW as its initials and is stated as such in sections of this and other documents for the RMRP II Additional Financing.

5 P a g e 1 I DESCRIPTION OF THE PROJECT Absence and irregular routine maintenance of national and provincial roads in Papua New Guinea (PNG) over two decades ( ) has affected connectivity, disrupted people s access to essential public services and hindered economic growth, as transporting goods and people becomes impossible, unsafe, or exceedingly costly. The Road Maintenance and Rehabilitation Project II (RMRP II) aims to provide efficient, safe and reliable roads in ten participating provinces (Central, Gulf, East and West New Britain, Manus, Oro, Morobe and Western) through the: (i) rehabilitation and improvement of selected road segments and (ii) strengthening the institutional arrangements for road maintenance. In addition, the Proposed Additional Financing (AF) activities will contribute to GoPNG s objective of expanding transport infrastructure services, and support long-term sustained economic growth by improving connectivity and facilitating trade and access to markets, as well as key Department of Works strategies for development of community entrepreneurial skills and facilitation partnerships with communities and NGOs spelled out in the Corporate Strategic Plan The AF activities will scale-up the benefits of RMRP II by: (i) improving road transport to project areas through providing satisfactory physical condition and safety in selected roads; (ii) strengthening institutional arrangements for road maintenance, including the participation of the private sector and local communities; and (iii) promoting road-related economic opportunities for women. A second objective of the AF is to bridge a financing gap caused by significant cost inflation in materials and labor since the RMRP II was approved. II. OBJECTIVES AND PRINCIPLES GOVERNING RESETTLEMENT AND LAND ACQUISITION It is anticipated that the physical works under the Additional Financing of RMRP II will be implemented within existing road corridors owned by the Government of Papua New Guinea (GoPNG).The sub-projects will not involve expansion or change in alignments requiring acquisition of new land or 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. Given the complex character of landownership in Papua New Guinea, and the importance of common property resources for village subsistence economies, the present Land Acquisitions and Resettlement Framework (LARF) seeks to establish guidance for any project s adverse social impact that could occur in the event that some roads require acquisition of land or the resettlement of people, in particular how to mitigate any involuntary acquisition of assets and changes in land use and includes provision for compensation and rehabilitation assistance.

6 P a g e 2 The LARF clarifies the resettlement principles and describes the organizational arrangements to be applied during sub-project implementation including the roles of the project s executing agency, the Department of Works (DOW), the Project Management Unit (PMU) and the sub-project contractors. For any sub-project that may involve involuntary resettlement or land acquisition, a subproject resettlement plan will be submitted to address the magnitude and complexity of resettlement or land acquisition. Compensation issues linked to the RMRP II will be regulated by this LARF providing principles and instructions to rehabilitated persons, families, customary landowner groups and other organizations negatively affected by the project. The overriding principle of the policy framework is that Project Affected Persons (PAP) regardless of tenure status, who are unavoidably affected by any activity of the original RMRP project and the AF activities should be compensated or assisted where appropriate, so as to improve, or at least restore their living conditions, incomes, earnings and or production capacity to pre-project 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 main principles to implement the policy are the following: a) Impacts on land, buildings, livelihoods, crops, trees and other assets shall be avoided or minimized as much as possible. b) 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. c) 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. d) 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 subgroups, 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. e) 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.

7 P a g e 3 f) The project will ensure effective and timely design, planning, consultation and implementation of compensation and rehabilitation measures. III. PROCESS FOR PREPARING AND APPROVING RESETTLEMENT PLANS When a subproject in RMRP II and the subsequent AF activities is identified, the subproject 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 the project design. The RMRP II and AF subproject activities will aim to minimize as much as possible any impacts on people s land or people s assets. If any land acquisition or resettlement impacts are identified, the sub-project contractor, in coordination with the DOW PMU will be responsible for preparing a resettlement plan to help guide the implementation process and serve as documentation for compensation. The preparation of an Abbreviated Resettlement Plan (ARP) will be required if it is anticipated that any impact will concern less than 200 persons for the sub-project and the impacts would be considered minor with no person to be physically displaced and less than 10% of their productive assets to be lost. In the event that the scope and level of detail of the impact is greater in magnitude and complexity, a non-abbreviated resettlement plan will be required. The Resettlement Plan will be prepared once any impact is identified and prior to the commencement of works. The Plan will be in English and translated into local language (Pidgin and Motu where necessary) and disseminated to stakeholders/ or available at an accessible location. The Plan should be prepared in consultation with potentially affected communities, 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; (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. IV. 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);

8 P a g e 4 (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. These persons are provided resettlement assistance in lieu of compensation for the land they occupy, and other assistance, as necessary, to achieve the objectives of the World Bank Involuntary Resettlement Policy OP 4.12, if they occupy the project area prior to a cutoff date established by GoPNG and acceptable to the Bank. Persons who encroach on the area after the cutoff date are not entitled to compensation or any other form of resettlement assistance. All persons included in (a), (b), or (c) are provided compensation for loss of assets other than land. V. LEGAL FRAMEWORK AND BANK POLICY The legal framework in PNG provides adequate safeguards against misuse of land acquisition and the inappropriate use of force for resettlement purposes and includes the following relevant laws: The Constitution of the Independent State of Papua New Guinea The Land Act (1996) Land Disputes Mediation Act Village Courts Act The PNG legal framework for land acquisition is in broad agreement with the World Bank requirements on these issues. In line with World Bank OP 4.12 WB OP 4.12 on Involuntary Resettlement, 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. The LARF does not contradict any clause of the state law. Where the law does not clearly determine a compensation policy, the sub-project will assume responsibility with respect to the PAP. Two main aspects should be carefully handled when seeking to ensure the interests of displaced persons and the loss of assets: In practice, PNG payments to project affected people can be delayed for a considerable period. It is therefore 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.

9 P a g e 5 The legal basis for land acquisition and resettlement in PNG is 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. 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. 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. Ninety seven percent of land in Papua New Guinea is still held under customary systems of land ownership. The existence of complex systems of usufruct rights. 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. Land ownership is vested in primary corporate groups, such as clans, usually organized according to local kinship principles. Land acquisition implies a transaction that has no equivalent in customary title. In the modern system a sale is once and for all. 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 For traditional landowners in PNG 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. 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 PNG 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.

10 P a g e 6 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. For the majority of the PNG population, land is their only significant resource and a very large proportion of the rural population depends 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. 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. In most instances, 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 in-depth 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. Transactions should be based on a mediated agreement between the parties. 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. After agreement has been reached the agreement may be ratified by a Land Court Magistrate and made an order of the court. Where agreement is not reached 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.

11 P a g e 7 When parties cannot reach agreement in a timely manner by informal discussion and negotiation with the sub-project contractor, or when an agreement breaks down, the dispute is brought to the Land Court and heard by a Magistrate. The court also appoints two or more Land Mediators to assist. The Mediators are appointed in all provinces of Papua New Guinea and their services are generally available, when requested, by any party in dispute. 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. An important role of the DoW will be 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 updated Valuer-General s list. The subproject 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. 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 buildup 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. VI. PARTICIPATION AND CONSULTATION Following the identification of each sub-project activities, 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 activities to be carried out. Information to be provided will include type of work to be implemented, potential impacts, and schedules. Communities from the area(s) of the sub-projects will be consulted as to ensure broad community support and that there are no pending issues such as disputes or affected families with the current alignment and Right of Way (RoW).

12 P a g e 8 The implementing agency will also ensure that the provisions of the LARF are effectively disclosed to the population living along the proposed targeted roads. 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. VII. COMPLAINTS AND GRIEVANCES Complaints and grievances in respect of compensation payments for customary owned land must be referred to the Provincial Administration 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 Level Government - The Ward Councilor 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. 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 sub-project contractor will have 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.

13 P a g e 9 VIII. RESETTLEMENT FUNDING ARRANGEMENTS 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. IX. 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. 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.

14 P a g e 10 ANNEX 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.