Daniel Fitzpatrick. Restoring and Confirming Rights To Land

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh
A UNDP / OXFAM REPORT
Dr. Daniel Fitzpatrick
14 July 2005
Daniel Fitzpatrick
Table of Contents
1. Introduction ... ... 2 3 5 5 6 78 7 7 8 9 11 11 12 13 15 15 21 26
2. Context and Background 3. Current Proposals and Programs 3.1. Rehabilitation Documents
and Replacement of Lost Land Title .......... ..
3.1.1. Replacement of Lost Land Records 3.1.2. Replacement of Lost Land Title Certificates 3.2. Systematic Title Registration
... ... ...
3.2.1. Issue of Temporary Documentation 3.2.2. Assistance to Local Government
3.2.3. Identification and Agreement as to Compensation and Appropriate Sites for Re-Location ... 3.2.4. Identification and Mapping of Unsafe or Submerged Lands ... 3.2.5. Monitoring and Supervision Arrangements .
3.3. Community - Based Land Mapping, Adjudication and Planning ...... 3.4. Law Reform 4. ..
Specific Recommendations and Programs of Assistance 4.1. Assistance to BPN
..
4.2. Assistance to Local Government
4.3. Assistance for Civil Society Monitoring and Advocacy
1.
Introduction
UNDP and Oxfam jointly commissioned the following report on restoring and confirming land rights for internally displaced persons in tsunami-affected Aceh, Indonesia. The report addresses two urgent issues: the need for sufficient tenure security to support housing reconstruction and land allocation; and the need to minimise land grabbing and other land-related forms of conflict. Cross-cutting issues taken into account include: international standards for sustainable return and restitution of land rights, re-location proposals and obligations of due process and compensation, the role of land consolidation, spatial planning and future tsunami protection measures, protection of the rights of vulnerable groups (particularly women and children), and options for improved institutional coordination. 1 Nanggroe Aceh Darussalam (NAD) sits at the northern tip of Sumatra. It is the westernmost province of Indonesia. The earthquake and tsunami of December 26, 2004, and the subsequent earthquake of March 28, 2005, damaged or destroyed over 300,000 homes and displaced over 500,000 people in NAD alone. Substantial damage was also done to governmental and non-governmental systems of land administration. The government of the Republic of Indonesia (ROI) has identified reconstruction of land rights as a key element of the rehabilitation phase, which is to run from April 2005 to December 2006. 2 Certain international principles govern access to land and housing in the context of displacement and return. They include: 1. The right to voluntary and sustainable return 2. The right to adequate housing and secure tenure 3. The right to participation, consultation and non-discrimination 4. The right to protection in temporary camps 5. Rights to livelihood, social security, water, health and education 6. Women and children's rights More detail on these international standards is provided in annexure 1. Land rights in NAD fall into two basic categories: statutory land titles and customary (adat) rights. Most records relating to both types of land rights were damaged or destroyed in the December 26 tsunami. Where no records existed, the social infrastructure underpinning certainty of land rights has also been affected by the deaths of community leaders and the loss, in some cases, of entire communities. These circumstances demand a rapid response to ensure a solid foundation of land
Although this report focuses on rights to land, it includes tenure security measures designed to support more general rights to housing and appropriate shelter for vulnerable groups.
2 1
Regulation of the President of Republic of Indonesia Number 30 Year 2005 on Master Plan for Rehabilitation and Reconstruction for the Regions and People of the Province of Nanggroe Aceh Darussalam and Nias Islands of the Province of North Sumatra Book 1 (The Bappenas Master Plan) at II-10, available at http://www.bappenas.go.id
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rights certainty for the process of reconstruction. This foundation should encompass certificated and uncertificated land, governmental and non-governmental activity. It is important not only to minimise land disputes, but also to provide sufficient legal and social certainty for re-building, shelter, livelihood and credit programs. Fieldwork for this report was undertaken in April and May 2005. Interviews were conducted with officials, NGOs and displaced Acehnese in Banda Aceh, Meulaboh and various sub-districts along the west coast. Some interviewees also provided written responses to detailed questionnaires. The information obtained was supplemented by library research and the author's own experience living and travelling in Aceh in the 1980s and 1990s. The author is grateful to all those who gave freely of their time in such difficult circumstances. He is also grateful for the support and insights of his colleagues at UNDP and Oxfam, particularly the invaluable assistance of Fakri Karim. As requested the report is as succinct and action-oriented as possible. Part 2 summarises the context and background. Part 3 analyses current proposals and programs relating to land rights in NAD. Part 4 provides a set of detailed recommendations.
2. Context and Background

A detailed description of the damage in Aceh may be found in official ROI documents. To summarise relevant aspects of the tragedy in NAD as at 21 March 2005:
3 4 5
126,602 people killed and 93,638 people missing; 514,150 people displaced; 654 out of 5947 villages (desa/gampong) severely damaged or destroyed and 640 village administrations not functioning; 3 16 districts/municipalities (kabupaten/kota) out of 21 severely affected or not functioning; 252,223 houses totally destroyed or partially damaged as a result of the December 26 tsunami; 4 Approximately 23,330 ha of rice fields and 126,806 ha of other agricultural or garden areas damaged by mud, salination, sand or erosion; 5 Approximately 300,000 land parcels (170,000 urban; 130,000 rural) out of an estimated 1,498,200 affected by tsunami-related damage; Destruction of the National Land Agency (BPN) office in Banda Aceh; Loss of approximately 30% of the staff in the Banda Aceh BPN office;
Ibid, II-9. Ibid, II-6, 10. Ibid, II-5.
Substantial damage to or loss of land records in BPN and sub-district offices; Widespread loss of personal identity records in tsunami-affected areas; Significant inundation and subsidence of affected coastal lands, in many cases averaging between 10 and 20% per village area; 6 Significant obscuring or obliteration of boundary lines and markers.
While these circumstances raise restitution imperatives that are common to many post-conflict or post-disaster contexts, it is important to distinguish the situation in tsunami-affected NAD in a number of respects. Unlike former Yugoslavia, there is no significant secondary occupation of houses. Thus there is no need for judicially sanctioned evictions as a prelude to restitution of land rights. Unlike East Timor, Rwanda and Afghanistan, there is no layered history of displacement and dispossession. Thus there is no underlying complexity of competing land claims between different groups of dispossessed. There is also no significant element of ethnic or inter-communal tension. Unlike Thailand and Sri Lanka, there have been no significant tourist or other commercial forms of development along the tsunami-affected coastline of NAD. Thus there are relatively few underlying disputes between commercial entities and allegedly dispossessed former landowners. Unlike many other parts of Indonesia, village-level customary institutions remain comparatively unaffected by uniform village administration structures established after 1979 by the Suharto government. As a consequence the level of intra-communal land disputation created by the tsunami has been remarkably low.
It follows that the situation in NAD may be characterised as primarily one of displacement and the need for sustainable return. While some instances of dispossession will occur, creating the need for judicial processes of restitution, the overwhelming priority must be on governmental and community-based mechanisms for ensuring tenure security in circumstances that demand relatively quick return. 7 This is not to say that the task will be an easy one. The following challenges will affect restitution and confirmation of land rights in NAD.
6 7
A long-standing context of conflict between secessionist elements and government security forces. A certain degree of mistrust between civil society organisations and government agencies. Persistent allegations of pre-tsunami corruption involving some provincial
Ibid, II-9.
Because of these distinguishing factors in Aceh, in particular the relatively minimal role to be played by judicial institutions, it is suggested that "best practice" comparative experiences do not offer particularly useful templates for land rights restoration and confirmation in Aceh.
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administrators, and fears of post-tsunami land grabbing by well-connected opportunists. Temporal imperatives to provide rapid forms of tenure security in order to establish a secure foundation for reconstruction, without prejudicing the possibility of future claims or upsetting complex interactions involving customary land institutions. The need to integrate "bottom-up" processes of community mapping and micro-planning with "top-down" mechanisms for systematic land titling, spatial planning and land consolidation. Relocation requirements for individuals and communities whose land is now submerged, destroyed or heavily contaminated, and concomitant obligations to provide due process and adequate compensation. Coordination difficulties arising from a wide range of stakeholders, including traditional institutions, civil society organisations, donors and government agencies at village, sub-district, district, provincial and national levels. Requirements for special laws in relation to inheritance, women and children's rights, compensation processes, unclaimed land, unfulfilled pre-tsunami contracts and contracts for re-building purposes. Requirements for special protective mechanisms in relation to vulnerable landholding groups (including orphans, widows/women, lease-holders and communities with insecure forms of tenure).
In summary, it is fair to conclude that the problem of land and housing rights in tsunami-affected NAD is more one of sheer scale than underlying complexity. At the moment the institutions involved in processing the claims of over half a million displaced Acehnese are overwhelmed by the size and urgency of the task. This report identifies quick impact measures to assist these key institutions.
3.
Current Proposals and Programs
Current programs to restore and confirm land rights in tsunami-affected NAD fall into four categories: rehabilitation and replacement of lost land records, systematic land title registration, community-based mapping and adjudication, and proposals for law reform. These four approaches will be described and evaluated in turn. Opportunities and areas for contribution by UNDP and/or Oxfam will be highlighted as appropriate. 3.1. Rehabilitation and Replacement of Lost Land Title Documents The ROI Master Plan, prepared by its lead planning agency Bappenas, recognises the urgent need to recover civil rights and issue (or re-issue) evidence of those rights. Delays in this process, particularly in relation to identity cards and land rights, are contributing to delays in the reconstruction process. Many displaced Acehnese no longer have identity cards or proof of rights to land. This is hindering access to re-
building assistance, particularly for poor and vulnerable groups. The Master Plan proposes the following steps in relation to land rights. An audit of the physical condition of land (obscured boundaries; unsafe, submerged or contaminated land etc). This proposal is the subject of specific recommendations for BPN assistance in Part 4. Replacement of lost land records, and systematic issue of new title certificates for previously unregistered land. These issues are now considered in turn.
3.1.1. Replacement of Lost Land Records Approximately 300,000 land parcels are directly affected by the tsunami (160,000 urban, 140,000 rural). It is estimated that 40-50% of tsunami-affected private land in the city of Banda Aceh, and 5-10% in Meulaboh, is held under statutory land titles. Thus the total amount of titled land in tsunami-affected areas amounts to approximately 25% of all land parcels. Records of these titles were held by landholders and in BPN offices. Almost all landholder records for tsunami-affected areas were destroyed. All of BPN's records, including the land register books (buku tanah) and cadastral index and land parcel plans, were severely damaged or destroyed. The Japan International Cooperation Agency (JICA) and the World Bank are funding programs to repair and digitally reproduce the damaged land books. Approximately 75% of land parcels in tsunami-affected NAD are classified as customary ownership land (hak milik adat). While this land is not certificated, it is often subject to certain types of written land records. This is an important point that is not sufficiently recognised in current proposals or programs. These records are usually generated by land sales (akte jual-beli), gifts (hibah), and inheritance-related divisions (pembagian hak bersama). In some cases they are issued by the sub-district head (camat) and witnessed by the village head coordinator (mukim) and village head (keucik). In other cases they are generated by the parties involved, and simply witnessed by the camat, mukim and keucik. Copies of these records were held in kecamatan offices. 8 In most tsunamiaffected kecamatan, these records have been damaged or destroyed. To date, no systematic program of assistance has been directed at recovery of damaged versions of these records. 9 Current JICA and World Bank programs are directed at recovery of damaged BPN records relating to certificated land. Hence there is a risk that uncertificated land records, generally held by poor landholders who could not afford certification, will not be recovered or repaired. Part 4 accordingly contains recommendations relating to recovery of damaged uncertificated land records held in kecamatan offices.
In some cases duplicates were also stored in BPN offices. However, these records were not as extensive or up-to-date as kecamatan records; and, in any event, have not been targeted by the World Bank and JICA programs (most likely because they have been destroyed rather than simply damaged). There is a small program of UNDP assistance for records recovery in kecamatan Johan Pahlawan in Meulaboh. The author has inspected the damaged documents in this kecamatan, and confirmed that many did not have duplicate copies held in the BPN Meulaboh office.
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3.1.2. Replacement of Lost Land Title Certificates Replacement of lost land title certificates, in response to applications from the public, is to be distinguished from restoring damaged land records. Articles 57-59 of Government Regulation 24 of 1997 set out the procedure and requirements for replacing lost land title certificates. An application must be accompanied by a sworn statement made before an official (or head) of the land office. A prescribed fee must be paid. The application is then advertised in a local paper. If there are no objections after 30 days, the head of the land office may issue a replacement certificate. The World Bank property rights and land administration project (discussed below) proposes to undertake systematic title registration in relation to previously registered and unregistered land parcels. This would overlay any ad hoc replacement of lost land title certificates by BPN. This report supports this approach. Ad hoc replacement processes will favour the wealthy and well-connected. Systematic surveying and adjudication, in combination with participatory land consolidation, will offer greater protection against fraud and injustice. Because there are no equivalent legal provisions relating to replacement of non-certificate records, such as akte jualbeli, hibah, surat keterangan hak atas tanah, a systematic program will also provide greater equality of opportunity in relation to uncertificated land. 3.2. Systematic Title Registration
The World Bank has received multi-donor trust fund funding, in the order of US$28.5 million, to assist reconstruction of property rights and land administration in tsunamiaffected NAD. While the project will also fund community programs and reconstruction of BPN infrastructure, its core element (US$20.34 million) is a program of systematic land title registration. This program will finance surveying and mapping, adjudication and registration of rights, and issue of land titles according to the following priorities: (i) Priority 1 - areas designated as settlement and housing areas, including areas necessary for the construction of public buildings such as schools, hospitals and government offices (estimated at 100,000 parcels); (ii) Priority 2 - all other tsunami affected areas (estimated at 200,000 parcels) ; and (iii) Priority 3 - land areas immediately adjacent to tsunami affected areas (estimated at 300,000 parcels). This report recommends that UNDP and Oxfam fully support this project. It offers an established mechanism for extending tenure security to land rights-holders affected by the tsunami. That said, the report strongly recommends that it be supplemented by UNDP and Oxfam programs in the following respects. 3.2.1. Issue of Temporary Documentation There is a significant risk that land titling processes, even with reduced evidentiary requirements, will not follow community-driven adjudication with sufficient speed to satisfy urgent tenure security needs in NAD. The World Bank project sets an ambitious timeline: BPN will send surveying and adjudication teams no later than 30 days after the completion of community-driven adjudication, and land titles will be issued no later than 90 days from the beginning of the surveying work. Yet, the
historical experience in Indonesia has been that systematic titling programs, even with fee-reduction and special evidentiary measures, have been relatively slow. They have never been undertaken in a highly rural and traditional area such as the West Coast of Aceh, with relatively complex underlying customary land structures. Nor have they been undertaken in post-disaster circumstances involving vast numbers of deaths and large amounts of submerged and contaminated land. In short, a reliance on titling alone to produce quick forms of tenure documentation for reconstruction purposes risks unavoidable delays and conflicts that may lead to project failure. A further important consideration is that other systematic land title programs in Indonesia (PRONA and ILAP) have been greatly affected by the refusal/failure of certificate-holders to register subsequent transactions affecting their land. This derivative registration problem has been widely recognised, including in official World Bank evaluations. As a result, issued certificates have quickly lost value as an accurate reflection of land relationships at the local level. This problem is all the more likely to occur on the West Coast of Aceh where local communities are (1) a considerable distance from BPN offices, (2) not experienced in registering land transfers or transactions with BPN, and (3) distrustful of the time and cost involved in dealing with BPN. All of these risks could be minimised by the issue of temporary documents to affected landholders. 10 This could be an interim step in the overall objective of registering land titles and issuing title certificates. In discussions in April and May, senior BPN officials in NAD raised the possibility of issuing temporary acknowledgement of registration letters (surat keterangan pendaftaran tanah sementara - SKPTS). These letters would not derive from pre-tsunami land records, but from community-based surveying, mapping and land consolidation processes. They would be temporary only and would not be definitive statements of land rights. Nevertheless, they would be essential documents in terms of establishing a rapid legal foundation for re-building, shelter, livelihood and credit programs. Part 4 sets out a number of recommendations for assistance relating to the issue of temporary land documents, with specified roles for BPN and local government. 3.2.2. Assistance to Local Government With offices in Banda Aceh and Meulaboh only, BPN's outreach capacity has always been limited by under-resourcing. In practice, the sub-district head (camat), village head coordinator (mukim) and village head (keucik) are important land administration officials in NAD. In some cases documents relating to uncertificated land are issued by the camat and witnessed by the mukim and keucik. In other cases they are generated by the parties involved, and simply witnessed by the camat, mukim and keucik. The camat, mukim and keucik also perform significant functions in terms of managing and resolving land conflicts, acting as a clearing house for land-related information, and acting as a coordinator for government programs of assistance at the village level.
This report also suggests a greater role for local government (sub-district and village) in order to bridge the institutional gap between BPN and coastal communities (see 3.2.2 below).
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Assistance to these local government institutions is the greatest "missing link" in current proposals relating to land rights in NAD. Almost all land-specific proposals target two institutions: BPN and NGOs that undertake community mapping. Yet, not only does local government play an important land administration role, it can also act as a vitally-needed bridge between "bottom-up" processes (community mapping, participatory planning) and "top-down" programs (land titling, surveying and consolidation). Most kecamatan have no more than two staff dedicated to land management issues. Many more are needed if the heavy demands imposed by posttsunami reconstruction are to be met. A targeted program of local government assistance would provide a means both to support kecamatan land management functions, and allow distribution of benefits to kemukiman and gampong level institutions. Part 4 sets out such a program. It particularly suggests that the camat should play a key role in forming village land mapping/adjudication committees; liaising between BPN and village institutions; and keeping records relating to community maps/adjudication and land consolidations. It also suggests that the camat (with the keucik and mukim as key verification agents) could play a key coordinating role with BPN in issuing temporary land documentation (SKTPS). The program of local government assistance set out in Part 4 is designed to be integrated with the World Banks Kecamatan Development Program (KDP). Further liaison in this regard will be essential. 3.2.3. Identification and Agreement as to Compensation and Appropriate Sites for Re-Location A large amount of land in NAD is now unsafe or submerged as a result of the earthquakes and tsunami. This was confirmed by aerial UNDP inspection of the affected coastline. This creates imperatives for land consolidation and, in some cases, re-location. Re-location of certain administrative and economic facilities is also proposed in the Bappenas Master Plan. In the author's view, re-location is likely to be the major cause of land-related conflicts in post-tsunami NAD. Assistance in relation to re-location is not directly covered by the World Bank's property rights and land administration project. Early proposals for reconstruction in NAD included a uniform coastal buffer zone in which re-building would not be allowed. A similar proposal has caused conflict in Sri Lanka. This proposal has been dropped in NAD. Instead, the Bappenas Master Plan offers a set of spatial planning guidelines that are to be elucidated in regional (kabupaten/kota) special plans. These principles include proposals for green belts and restricted development zones. 11 The restricted development zones allow for the return of fishing communities and associated infrastructure. The green belts include the possibility of plantation and commercial forest zones. Although the Master Plan emphasises the principle of voluntary re-location, 12 there is significant potential for
11 12
The Bappenas Master Plan, supra n 1, V-12 V-18. Ibid, VI-1.
non-consensual re-locations and some risk that commercial interests will exploit green belt opportunities. Part 4 contains a set of recommendations for civil society-based monitoring and advocacy measures relating to these issues. It also contains recommendations for local government assistance in relation to re-location and developing sub-district spatial plans. A related issue concerns compensation for those communities that are relocated, and for persons whose land is acquired for public purposes. The Master Plan sets out current government policy on this issue. It states that the amount of compensation is to be determined in accordance with existing regulations and the government's financial capacity. Those that will receive compensation include people who are re-located, and those whose land is required for tsunami protection and escape facilities. Additionally, the government proposes to provide assistance to those whose land is destroyed, submerged or contaminated. For destroyed, lost or submerged lands, government assistance will take the form of 200 square metres of substitute land with a core house of 36 square metres per family "at a location stipulated by the government". This assistance will not derogate from the beneficiaries' rights to their original land. However, for land that "technically is no longer feasible to be occupied" the government will provide the same form of assistance but the original land "will become government property without compensation". This proposal appears to apply to those re-located due to spatial planning considerations. 13 For all those who have lost houses in this tsunami disaster the government also proposes to contribute towards a core house of 36 square metres for each family, by providing 28 million rupiah for totally destroyed houses and 10 million rupiah for lightly and moderately destroyed houses. 14 As with re-location generally, compensation disputes are a major potential source of conflict in post-tsunami NAD. The law and practice of land-related compensation has caused significant conflict across Indonesia. These conflicts stem from procedural weaknesses, particularly in relation to consensual negotiation with landholders, and a substantive failures to pay market value for acquired (or "released") rights to land. Both issues are inconsistent with international standards for the compulsory acquisition of rights to land for public purposes (further elucidated in annexure 1). Part 4 contains detailed recommendations for assistance relating to re-location and compensation issues. This includes an audit process of available state and private land, to be conducted by BPN in consultation with the Forestry Department and representatives from kabupaten, kecamatan and civil society organisations. This is essential in order to avoid the "honeypot" effect created by ad hoc searches for relocation sites. The recommendations also include valuation and consultation mechanisms that link BPN, kecamatan, NGOs and village groups in order to ensure consensual and participatory re-location processes. Finally, monitoring and advocacy
13 14
Ibid. Ibid, VI-2.
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mechanisms are suggested in relation to specific re-location and compensation cases. Although not the subject of a specific recommendation, the report also suggests that consideration be given to direct donor contribution to ROI compensation funds. After all, it is a lack of money that is often the root cause of governmental failure to pay market rates of compensation. 3.2.4. Identification and Mapping of Unsafe or Submerged Lands A related issue concerns accurate identification and mapping of unsafe or submerged lands. This is important to prevent inappropriate forms of re-building, and minimise conflicts arising from re-location or land consolidations. In relation to submerged lands, this may be a relatively easy procedure that could accompany land surveying and mapping programs. In relation to unsafe lands, particularly where the soil structure is not sufficiently stable for proposed reconstruction, technical expertise and support may be necessary to complete identification and mapping programs in a timely fashion. Part 4 contains a number of specific recommendations relating to international expertise and capacity-building measures in this area. 3.2.5. Monitoring and Supervision Arrangements The World Bank program of assistance for systematic land titling includes a subcomponent for monitoring, evaluation and complaints-handling. This component will finance a hotline to be operated by a private organisation that will receive complaints through telephones and letters. The private operator will log all complaints and submit them to the project management unit and the steering committee. This report recommends additional monitoring and supervision measures to supplement this World Bank project sub-component. While on balance this report does support systematic land titling programs for tsunami-affected NAD, they do contain a number of inherent risks for poor and vulnerable landholding groups. These risks may be summarised as follows. Very large numbers of people, a majority in many communities, were killed in this tsunami disaster. Special measures are thus required to protect the interests of heirs, particularly children and dispersed relatives. The large number of deaths and rapid extension of community mapping and planning by NGOs creates another problem for titling programs. How can new plots, agreed through participatory planning and consolidation processes, be titled without prejudicing the claims of pre-tsunami landholders and their heirs? This issue is discussed further below. Islamic inheritance principles and patriarchal traditional structures may discriminate against women (particularly widows) in terms of rights and access to land. Comparative experience is that public information programs are not in themselves an adequate response to this threat of discrimination. Comparative experience also suggests that systematic land titling programs, particularly in areas characterised by customary land institutions, can discriminate against secondary land rights-holders and those less capable of accessing State institutions. This is a particular issue in Aceh because
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customary land institutions are not well-understood by outsiders. It is also important because a number of coastal landholders in urban areas were leaseholders only. These rights should be protected and perhaps even upgraded where the landowner is deceased and no heir is forthcoming. Systematic land titling will not solve - and in some cases may exacerbate problems caused by restrictions on access to common resources (e.g. maritime areas, fringing reefs, and forest lands). This issue requires law reform, including clarification of the boundaries of State land and the status of communal land rights (hak ulayat).
Part 4 contains a number of recommendations relating to monitoring and supervision of the proposed systematic land titling programs in NAD. These recommendations include support for: guardian institutions to assert and hold land rights on behalf of orphans, advocacy and monitoring institutions relating to women's rights and secondary land rights-holders, evaluation and research mechanisms in relation to the impact of titling on customary land institutions, and advocacy and monitoring measures in relation to common property resources. 3.3. Community-Based Land Mapping, Adjudication and Planning The third element of current land-related programs in NAD concerns communitybased land mapping, adjudication and planning. As at July 2005 the following areas had been the subject of community mapping by specialist NGOs: Over 80% of Banda Aceh (FBA, YIPD, UP-Link, Pugar) Parts of Aceh Besar (UP-Link) Parts of Lhong (Mama Mia) Approximately 16 villages in Nagan Raya (KMS).
It appears that substantial areas in the West Coast districts of Aceh Barat and Aceh Jaya have yet to be the subject of NGO community mapping activity. The World Bank project includes a component (US$1 million) to assist extension of communitydriven adjudication to all tsunami-affected areas. UN Habitat has prepared a set of modules and guidelines for community-based mapping, adjudication and planning processes. These modules and guidelines will be supplemented by technical manuals prepared with the assistance of the World Bank. This report fully supports community-driven mapping, adjudication and planning processes in NAD. Communities know their own land rights, boundaries and planning needs best. This said, the following issues have arisen that may require further donor responses. Uncertainty concerning (1) the legal status of community maps produced or facilitated by NGOs, and (2) the relationship between these maps and BPN's surveying and titling activities.
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Indications that NGOs are focusing more on participatory planning and land consolidation than identification and adjudication of pre-tsunami land rights. Corresponding indications that BPN will insist on surveying land boundaries both before and after NGO-facilitated community planning. A lack of qualified surveyors to undertake boundary determination for BPN in a timely fashion. A certain degree of mistrust between NGOs and BPN.
UNDP has previously proposed support for a working group, a funded secretariat and a series of workshops to improve cooperation between BPN and NGOs undertaking community mapping activities. These proposals are repeated in Part 4. They would supplement the World Bank-supported technical manuals. It is also recommended that these manuals (and accompanying regulations) move beyond bilateral issues of BPN/NGO coordination, and clarify the specific roles and responsibilities of such actors as owners/occupiers, village institutions and sub-district officials in the community-based mapping, adjudication and planning process. Recognising and identifying specific roles for village institutions and sub-district officials (camat, mukim and keucik) will increase the prospects for BPN acceptance of NGOfacilitated community mapping initiatives. Part 4 suggests programs to allow the camat to play a key role in (1) forming village land mapping and adjudication committees, (2) liaising between BPN and village institutions, and (3) keeping records relating to community land maps, adjudications and consolidations. The proposed program of local government assistance will also help village-based institutions to undertake land rights adjudication in circumstances where NGO-facilitated programs have focused on land consolidation and participatory planning. In the author's view, the urgent circumstances and institutional capacity issues are such that NGO-facilitated community planning and land consolidation should not be unduly delayed by legalistic arguments that reconstructing pre-tsunami rights and boundaries is a necessary pre-condition to planning and consolidation. Where subsequent titling programs issue certificates in accordance with post-tsunami community plans, supported village adjudication institutions can help resolve conflicting claims from pre-tsunami landholders and their heirs. This would be a more efficient and practical response to the emerging risk that future-oriented community planning and land consolidation - an urgent and essential part of tenure security recovery in NAD - will prejudice claims from pre-tsunami landholders and their heirs. Part 4 also recommends support for a national Indonesian NGO to evaluate, monitor and make advocacy recommendations in relation to community-based mapping, adjudication and planning programmes in NAD. 3.4. Law Reform The Bappenas Master Plan has identified the following issues that require legal attention: Demographic data relating to precise numbers of survivors, deaths and missing persons;
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Civil law data relating to pre-tsunami marriages, divorces and inheritance; The status of unclaimed personal property including movable assets, bank accounts and life insurance policies etc; Evidentiary requirements relating to proof of property rights; The status of ongoing contracts affected by the tsunami (e.g. death of parties; impossibility of performance) The status of destroyed, contaminated and/or submerged land; The status of scanned copies of evidentiary material; The status of post-tsunami land transfers or transactions; Legal responsibility for the land documentation reconstruction process; The status of the Baitul Maal (community religious treasury) as a land-owning entity; Possible acceleration of the process for replacing land title certificates (including shortening the announcement and oath periods); The status of communal land rights (hak ulayat); The mechanism for identifying and utilising land for refugee camps and other disaster-response activities. 15
The World Bank has also identified the following legal issues that may require special regulation: (i) clarification of inheritance in accordance to the Syariah law; (ii) treatment of mortgages of properties already destroyed by the Tsunami; (ii) waiver of fees and charges for land titling for Tsunami affected areas; (iv) public notification periods; and (v) surveying regulations. A further important legal issue concerns the identity and duties of guardian institutions to hold land rights on behalf of orphans until they reach adulthood. The World Bank's property rights and land administration project will support the provision of consulting services to undertake analysis and provide options relating to these issues. The Bappenas legal committee is also drafting a number of laws for NAD's regional parliament (DPRD). Part 4 recommends support for a high-level land rights advocacy and advisory council in Banda Aceh that will inter alia assist and monitor these activities. It also recommends support for four important legal assistance and advocacy NGOs in NAD: Lembaga Bantuan Hukum (LBH) Lembaga Konsultasi dan Bantuan Hukum untuk Wanita dan Keluarga (LKBHuWK), Lembaga Bantuan Hukum Pakattabela (LBH-PT) and Koalisi HAM. Finally it recommends specific support for BPN's legal bureau in relation to land-related law reform requirements.
15
Ibid, IV-11.
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4.
Specific Recommendations and Programs of Assistance
Three programs of assistance are recommended. It is suggested that the first two assistance to BPN and Local Government - should be pursued by UNDP. The third -advocacy and monitoring -- should be supported by Oxfam. As discussed in Part 3, the recommended programs of assistance are carefully designed to complement World Bank assistance to BPN, and the various forms of donor assistance to NGOs undertaking community mapping. There may be some overlap in certain identified areas. Further liaison and coordination will be required in this regard, and the author has separately recommended employment of another land rights consultant by UNDP to undertake this coordination activity. Finally, it is noted that the recommendations are global in nature. As events unfold, some geographical selection and focus may become appropriate. It may also become appropriate to cherrypick or farm out some of the recommendations in consultation with other donors. 4.1. Assistance to BPN Title Facility to support rapid restoration and enhancement of land rights certainty in tsunami-affected Aceh, through assistance to the National Land Agency (Badan Pertanahan Nasional: "BPN"). Summary The facility will provide targeted assistance to BPN in order to facilitate sustainable return and reconstruction in tsunami-affected NAD. It is directed at short-term priority needs relating to the restoration and enhancement of land rights certainty. It will not support longer term infrastructure requirements, or the extension of land title certification programs. As such, the facility represents a priority component of a larger program of assistance to BPN in tsunami-affected NAD. This larger program will involve inputs and contributions from other multilateral and bilateral donors. Objectives The overarching objective is quick confirmation and enhancement of land rights certainty in tsunami-affected areas of NAD. Detailed Description of Activities UNDP has identified the following priority areas that may be suitable for BPN assistance. This assistance complements the proposed World Bank programme of support for BPN. 1. Community-based land surveying processes. 2. Community-based land consolidation processes.
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3. Coordination with village, sub-district and NGO land mapping processes. 4. Preparation and issue of temporary land documents. 5. An audit process to identify appropriate sites for re-location. 6. Identification and mapping of unsafe and submerged lands. 7. Legal information and reform programs. 8. Coordination with kota, kabupaten and kecamatan offices. Each of these activity areas will now be described in turn. 1. Community-based Land Surveying Processes (Estimated cost - US$100,000) Land surveying involves accurate measurement and mapping of land boundaries. While BPN has sole legal authority to conduct land surveys, it will need to cooperate with local communities as they know their pre-tsunami boundaries best. Ideally, land surveying should also be integrated with programs to identify pre-tsunami land rights, undertake land consolidation measures (where necessary), and plan public facilities and land-use patterns. As at April 12 2005, BPN had already surveyed 28 Kampong in Banda Aceh. With current staffing and equipment levels, it is estimated that land surveying will take at least 1 year in Banda Aceh and 2 years in all tsunami-affected areas of NAD. Speeding up this process is a priority because sustainable reconstruction requires accurate information and social consensus as to land boundaries. It is also important to prevent delays in community mapping and participatory planning processes. UNDP proposes to assist the following activities. It is envisaged that this support be short-term in nature. In the medium term, it will be overtaken by the World Bank property rights and land administration project. 1). Employment of mobile surveying teams from other parts of Indonesia. 2). Transport for these teams, both to Aceh and within Aceh. 3). Training and employment as necessary for extra surveying staff in NAD. 4). Technical, communications and office equipment for surveying teams in tsunami-affected areas of NAD. 5). Staffing, salary and office requirements for accurate record-keeping relating to land surveys. 6). Staffing, salary and transport requirements for effective liaison with communities whose land is being surveyed. Community-based Land Consolidation Processes (Estimated cost - US$150,000) Land consolidation involves the regularisation and adjustment of boundaries within a village territory. It is particularly important in tsunami-affected NAD because of the extent of unsafe or submerged lands. Land consolidation should be
2.
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participatory so as to meet community desires and needs. Where NGOfacilitated land consolidation has already taken place, BPN should simply confirm through liaison with village and sub-district officials - that the legal requirement for agreement by 85% of surviving community members has been satisfied. NGOfacilitated land consolidation maps may then need to be integrated with formal plans through the use of appropriate technology (GPS etc). UNDP proposes to assist the following activities: Employment as necessary of mobile land consolidation teams from other parts of Indonesia. Transport for these teams, both to Aceh and within Aceh. Training and employment as necessary for extra land consolidation staff in BPN NAD. Technical, communications and office equipment for land consolidation teams in tsunami-affected areas of NAD. Staffing, salary and office requirements for accurate record-keeping relating to land consolidations. Staffing, salary and transport requirements for effective liaison with communities subject to land consolidation. 3. Coordination with Village, Sub-district and NGO Land Mapping Processes (Estimated cost - US$50,000) In a number of tsunami-affected areas, land mapping (pemetaan) programs have already commenced or even been completed. According to UNDP observations, these programs have variously been implemented or instigated by ad hoc village committees, sub-district officials and/or a number of NGOs. Generally speaking, these mapping programs have a strong planning and land consolidation element. These programs must be consistent with law. They should integrate with surveying and land consolidation measures undertaken by BPN. They should meet relevant standards for accuracy and quality. Above all, they must produce results that can be verified by BPN in order to confirm and enhance land rights certainty in tsunami-affected NAD. These circumstances and imperatives require coordination between BPN and other groups undertaking community-based land mapping in tsunami-affected NAD. This coordination should be based on two basic principles: 1). BPN has legal authority in relation to land surveying (pengukuran), and the grant of rights to land. It should lead and coordinate any process of land mapping and confirming rights to land in tsunami-affected Aceh. 2). Tsunami-affected communities have the legal right to undertake through a process of consensus and deliberation their own acts of land mapping, land
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consolidation and application for verification of rights in land within their territorial boundaries. NGOs have the legal right to assist communities where that assistance is requested by the community through a process of consensus and deliberation. Ultimately, the objective of all groups is the same: to confirm and enhance land rights certainty in tsunami-affected NAD in as timely a manner as possible. UNDP proposes to assist the following activities: Secretariat staff and equipment for a BPN/NGO working group on land mapping processes. Training and information workshops by BPN for NGOs, kecamatan staff, mukim and/or village representatives in relation to community mapping processes. Record-keeping at kecamatan and BPN offices relating to community land mapping processes. 4. Urgent Issue of Temporary Land Records (Estimated cost - US$600,000) Senior BPN staff in NAD have raised the possibility of issuing temporary acknowledgement of registration letters (surat keterangan pendaftaran tanah sementara - SKPTS). These letters would not derive from pre-tsunami land records, but from community-based surveying, mapping and land consolidation processes. They would not be definitive statements of land rights, and would be interim steps only in any process of systematic land titling. Nevertheless, they would be essential documents in terms of establishing a rapid legal foundation for re-building, shelter, livelihood and credit programs. UNDP proposes to assist the following activities: Employment of mobile BPN teams to coordinate with local government officials in processing and issuing SKTPS. Where necessary, employment of these mobile teams from BPN offices outside NAD. Transport for these teams, both to Aceh and within Aceh. Training and employment as necessary for extra BPN staff to assist the issue of SKTPS in tsunami-affected NAD. Technical, communications and office equipment for SKTPS teams in tsunamiaffected areas of NAD. Record-keeping at kecamatan and BPN offices relating to the SKTPS process. Employment of a seconded BPN liaison officer to each tsunami-affected kabupaten and kecamatan to assist information-flows, record-keeping and coordination in relation to the SKTPS process.
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5.
Identification and Socialisation of Lands for Re-Location (Estimated cost US$500,000) A large amount of land in NAD is now unsafe or submerged as a result of the earthquakes and tsunami. As noted, this creates imperatives for land consolidation and, in some cases, re-location. Re-location of certain administrative and economic facilities is also proposed in some districts by the Bappenas Master Plan. Re-location creates the potential for conflict, particularly in relation to substitute lands and demands for compensation. There is an urgent need to anticipate and minimise these conflicts. UNDP proposes to assist the following activities: Mobile BPN teams to identify and survey boundaries of available State land for re-location purposes, in consultation with Forestry Department, kabupaten, kecamatan and civil society representatives. Each team to check with Forestry Department, kabupaten, kecamatan and civil society representatives to ensure that the land is not subject to pre-existing claims. Each team to provide their findings and data to a central "land bank" database at BPN Banda Aceh's offices. Where necessary, each team to identify and value appropriate private land (and its owner(s)) for re-location purposes. Each team to liaise with consultation committees that link BPN, kecamatan, NGOs and village groups in order to ensure consensual and participatory relocation processes. Each team to coordinate with livelihood assistance programs through liaison with relevant provincial, kota, kabupaten, and kecamatan livelihood committees. After negotiation and agreement with affected communities, mobile BPN teams to survey boundaries and issue appropriate land title certificates in relocation sites.
6.
Identification and Mapping of Unsafe or Submerged Lands (Estimated cost US$400,000) Accurate identification and mapping of unsafe or submerged lands is important to prevent inappropriate forms of re-building, and minimise conflicts arising from relocation or land consolidations. In relation to submerged lands, this may be a relatively easy procedure that could accompany land surveying and mapping programs. In relation to unsafe lands, particularly where the soil structure is not sufficiently stable for proposed reconstruction, technical expertise and support may be necessary to complete identification and mapping programs in a timely fashion.
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UNDP proposes to assist the following activities. Employment of mobile BPN experts to identify and map unsafe or submerged lands, in conjunction with land surveying and consolidation processes in tsunami-affected areas. Where necessary, employment of these experts from BPN offices outside NAD. Transport for these experts, both to Aceh and within Aceh. Training and employment as necessary for BPN staff to assist identification and mapping of unsafe or submerged lands in tsunami-affected NAD. Technical, communications and office equipment for these BPN experts. Record-keeping at kecamatan and BPN offices relating to the unsafe or submerged lands identification and mapping process. Employment of a seconded BPN liaison officer to each tsunami-affected kabupaten and kecamatan to assist information-flows, record-keeping and coordination in relation to the unsafe or submerged lands identification and mapping process. 7. Legal Information and Reform Programs (Estimated cost - US$400,000) A number of issues may require special legal regulations for tsunami-affected NAD. They include: the status of community maps, letters of interim land registration (SKPTS), inheritance claims, re-location and compensation, submerged and unsafe lands, land for which there are now no claimants, rights of orphans and women, and jurisdictional limits and authorities. Comprehensive information relating to these regulations, and the underlying legal structure for land-related programs, needs to be made available to all those affected by the tsunami, including in particular communities, NGOs and government officials. UNDP proposes to assist the following activities. Employment and support for extra legal staff in the BPN legal bureau. Policy workshops convened by BPN, Bappenas/Bappeda and Bapel in Banda Aceh on land-related legal issues arising from the tsunami. Legal information workshops (in conjunction with kabupaten and kecamatan staff) to be held in each kecamatan in tsunami-affected areas of NAD. 8. Coordination with Kota, Kabupaten, and Kecamatan Offices (Estimated cost US$400,000) All of the above activities require a high degree of coordination with kota, kabupaten, and kecamatan levels of government. This coordination imperative particularly relates to inter-governmental liaison, record-keeping and exchange, and localised mechanisms for effective consultation and information-flows.
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UNDP proposes to assist the following activities: Employment of seconded BPN officers in each tsunami-affected kabupaten and kecamatan office to assist information-flows, record-keeping and coordination in relation to all the above UNDP/BPN activities. Transport, communications and office support for these seconded BPN staff members. Total estimated cost = US$2.6 million 4.2. Assistance to Local Government Title Facility to support rapid confirmation and enhancement of land rights certainty in tsunami-affected Aceh, through support to local government. Summary The facility will provide targeted grants to tsunami-affected kecamatans to assist the following activities: a. b. c. d. Community-based land mapping and adjudication. Land management functions ordinarily performed at kecamatan level. Repair and restoration of damaged land records held in kecamatan offices. Improvement of adjudication and dispute-resolution functions at village level (kemukiman and gampong)
Community-based land mapping and adjudication has been identified as a key mechanism for promoting land rights certainty in NAD. A primary vehicle for organising and facilitating this activity will be kecamatan and village level institutions. Kecamatan offices also have an important role in terms of generating, verifying and storing land records relating to uncertificated land. Although many of these records have been damaged or destroyed, no systematic program of recovery has been directed at their recovery. Finally, kecamatan and village officials have important roles in terms of minimising land-related conflict, and coordinating land administration activities at the local level. The facility will be integrated with the World Bank's Kecamatan Development Project (KDP) and Urban Poverty Project (UPP). It is consistent with other UNDP programs of kecamatan assistance.
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Objectives The objectives are rapid extension of community land mapping and adjudication, and rapid restoration and enhancement of local government land administration functions, in tsunami-affected areas of NAD. Expected Results Rapid implementation of community land mapping and adjudication in tsunamiaffected areas of NAD. Protection of the property rights of displaced Acehnese, particularly poor and vulnerable groups that held inadequate or uncertificated land records. Adequate quality control of community land mapping and adjudication processes through technical manuals, workshops and monitoring programs. Adequate record-keeping in relation to community land mapping and adjudication processes, particularly at kecamatan and village levels of government. Adequate coordination both between local government institutions, and with BPN and other relevant government agencies. 1). Capacity building for local government and village institutions involved in adjudications and resolving land-related conflicts. Detailed Description of Activities This description of activities draws on the following World Bank categorisation of damage in kecamatans directly affected by the tsunami. Level of damage Heavy Medium Light Number of kecamatans 43 20 10
The facility will provide targeted grants to tsunami-affected kecamatan for the following activities. 1). Formation of Village Land Mapping and Adjudication Committees (Total cost - US$248,500) While technical assistance and training will be required, in all cases community land mapping and adjudication should primarily be undertaken by village members. Based on the UNDP consultant's observations and discussions, it is estimated that each village land mapping and adjudication committee will have approximately 11 members. Each member will be paid an honorarium of 40,000 rupiah a day. The chair will be paid 60,000 rupiah a day. On average, each village will take approximately 7 days to complete community land
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mapping and adjudication. There are 656 directly affected villages (although a large number of these are spread across several hamlets). Cost US$235,000. Each village land committee will require the following items: boundary marker stakes, ropes, ownership/occupancy marker signs and tape measures (up to 50 m). Based on the UNDP consultant's observations and discussions, the total cost of these items per kecamatan is estimated at 1.5 million rupiah (US$180). Cost - US$13,500. These activities would be preliminary steps in the World Bank-supported systematic land titling programs by BPN. In a number of cases, community mapping will have been completed already with the assistance of NGOs. These village land committees are designed as an ongoing quality control and coordination mechanism in relation to community mapping, and as an institution that will coordinate with the BPN land titling program. They should also be linked to the village Development Councils proposed in the Master Plan. 2). A Tiered Program of Consultant Facilitators (Total cost - US$1.7 M) This component will build on the World Bank's KDP program of kecamatan development facilitators. Each kecamatan will have dedicated community land mapping and adjudication facilitators, calculated as follows: Category A - 5 Category B - 3 Category C - 1 These facilitators will (1) help train and supervise village land committee members, in conjunction with specialist NGOs commissioned for this purpose, (2) provide technical support and advice, including in relation to BPN requirements and available NGO services, and (3) ensure proper record-keeping and quality control. Cost - US$1.1 m. KDP management units at provincial and district levels will also have seconded community land mapping and adjudication facilitators. (3 x province; 1 per district). These facilitators will perform appropriate coordination and monitoring functions. Cost - US$20,000. In all cases, appropriate communications, transport and technical equipment support will be provided. Office and administrative support is a subject of component 4 below. Cost - US$580,000. This component will also need to be integrated with the World Banksupported systematic land titling program. The aim is to provide capacitybuilding for local government institutions in order to improve coordination with BPN activities.
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3). Capacity-building in Relation to Community Land Mapping and Adjudication (Total cost - US$270,000) "Training the trainers": workshop and training programs for specialist NGOs that will train local government facilitators and village land committee members. These programs will have BPN inputs and will encompass technical manuals for community land mapping and adjudication. Cost US$20,000. Training programs and technical assistance for each village land committee, to be undertaken as appropriate by specialist NGOs with the assistance of kecamatan facilitators. Cost - US$100,000. Workshops and training programs for government officials, including kecamatan, district and provincial facilitators, calculated as follows. Category A: 10 workshops in different areas of the kecamatan to be held within six months. Participants to include designated facilitators, camat, kecamatan administrative staff, mukim, keucik and tokoh adat. Category B: 5 workshops in different areas of the kecamatan to be held within six months. Category C: 2 workshops in different areas of the kecamatan to be held within six months. Cost - US$100,000. Workshop for provincial, district and city officials on community land mapping and adjudication process. Cost - US$10,000. Information programs and workshops for villages in relation to community land mapping and adjudication (leaflets, videos etc). Cost - US$40,000. 4. Community Land Mapping and Adjudication Support Units (Total cost US$920,000) Each kecamatan in tsunami-affected areas will have community land mapping and adjudication support units. These units will have appropriate office equipment, computer operators and administrative staff to support the community land mapping and adjudication process. The total number of support unit staff per kecamatan is calculated as follows. Category A - 3 Category B - 2 Category C - 1 Cost - US$720,000.
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Each tsunami-affected mukim will have a community land mapping and adjudication support unit. These units will have 1 administrative staff member and appropriate equipment for monitoring and coordination purposes. Cost US$200,000. 5. Rapid Repair and Restoration of Damaged Land Records Held in Kecamatan Offices. Repair and restoration activity will require national and international experts to identify, collect and repair damaged records from directly affected kecamatan. Costing of this activity will require further needs assessment. 6. Restoration and Enhancement of Land Management Functions Ordinarily Performed at Kecamatan Level (Total cost - US$840,000) Extra staff and support equipment will be stationed in each tsunami-affected kecamatan to assist with ordinary land management functions, calculated as follows. Category A - 3 Category B - 2 Category C - 1 Cost -US$540,000 Separate workshops and training programs will be provided to these staff members (and existing staff members) in relation to land regulation, community consultation and conflict-mediation. Cost - US$300,000. 7. Capacity-Building for Village Adjudication and Dispute-Resolution Institutions (Total cost US$250,000) A programme of local government assistance, through established KDP structures, is the most practicable and systematic means to provide capacitybuilding for village institutions engaged in adjudications and dispute-resolution relating to land. These institutions are described in Part 3 above. Funding will be provided for: Land mediation training programs. Land issues awareness programs (including rights of women and children). Legal issues training programs. Administrative and secretarial support for mukim and keucik in tsunamiaffected areas (calibrated according to category A, B or C damage). 8. Monitoring and Evaluation (Total cost - US$50,000). Monitoring will take place through established KDP structures. This would
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include the KDP master database, complaints mechanisms, and audit requirements. Additional funding will be provided for these purposes. Further funding will also be provided for a competitively selected NGO to monitor and report on the progress of local government activities in relation to confirming and enhancing land rights in tsunami-affected areas. Cost - US$50,000. Total Amount Requested for Local Government Assistance: US$4,278,500. 4.3. Assistance for Civil Society Monitoring and Advocacy Title Facility to support monitoring and advocacy in relation to land rights in tsunamiaffected Aceh, through support to civil society. Background This report has recommended substantial programs of government assistance because government agencies, including village officials, are in the front-line of restoring and confirming land rights in tsunami-affected in NAD. This approach builds on the fact that, in many cases, civil society organisations are not legally or institutionally capable of substituting for specific land-related governmental roles and responsibilities. This said, however, there are risks in providing funds to unpopular or potentially dysfunctional government institutions. Thus it is essential that the government assistance recommendations in this report be complemented by the following civil society-based monitoring and advocacy mechanisms. The following land-related issues have been identified as requiring particular monitoring and advocacy attention: Re-locations due to spatial planning decisions, or loss of habitable land. Compensation for re-located communities, those who have lost land, and those whose land is expropriated for tsunami-protection purposes. The need to identify and regulate the duties of guardian institutions that hold rights to land on behalf of orphans. The vulnerable status of women's rights and secondary rights-holders (lessees etc), particularly in the context of systematic land titling. The need to evaluate and monitor the impact of titling on customary land institutions. Access and rights to common property resources (maritime areas, fringing reefs and forest lands) by local communities. Legal reform requirements (as set out in Part 3).
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Description of Proposed Activities 16 1. Support for NGOs able to provide legal, mediation and information services relating to land. Four such NGOs in NAD are Lembaga Bantuan Hukum (LBH) Lembaga Konsultasi dan Bantuan Hukum untuk Wanita dan Keluarga (LKBHuWK), Lembaga Bantuan Hukum Pakattabela (LBH-PT) and Koalisi HAM. Employment and training of dedicated staff directed at the issues listed above. Training could be provided by an experienced national Indonesian NGO (e.g. HuMa, KPA). Such staff to be stationed as appropriate in each kabupaten (with mobile teams able to visit remote kecamatan). Transport and communications support as required for NGO land rights staff. Communications, transport and workshops support for relevant Acehnese NGOs to link with national Indonesian NGOs. Support for distribution of leaflets/information products (processes and rights relating to land, including in relation to women and children, inheritance, relocation and compensation etc). 2. Support for the Faculty of Law, Syiah Kuala University. Placement of staff and students with NGOs that provide legal assistance services. Capacity-building for staff members engaged in monitoring, evaluation and policy advice activities. Capacity-building and applied research project for Law School staff members, and commissioned sociologists and anthropologists, to undertake a study of the effect of post-tsunami land titling on customary land institutions. 3. Non-Governmental Land Monitoring and Advocacy Council in Banda Aceh. This council would provide high-level policy advice and advocacy to government agencies, including the reconstruction authority, in relation to land rights. It would also have a strong media information component to publicise cases/abuses and advocate policy recommendations. Commissioning of a National NGO (e.g. HuMa or KPA) to establish the council with representatives from Acehnese NGOs and civil society organisations. Funding for office, transport and communications support. Dedicated funding for experienced media information officers. Support for preparation of leaflets/videos/information products (processes and
Specific cost estimates in relation to all these activities will require further input from Oxfam or UNDP officers.
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rights relating to land, including in relation to women and children, inheritance, re-location and compensation etc). Support for workshops for lawyers, mediators and information experts. Support for database on disputes etc.
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ANNEXURE 1
Relevant International Standards relating to Land, Housing and Property Rights 17 General Instruments International Conventions EUROPEAN CONVENTION ON HUMAN RIGHTS Art 1, Protocol 1; Art 2, Protocol 4 Protocol 1 ARTICLE 1 Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Protocol 4 Article 2 Freedom of movement 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.
2. 3.
4.
Further detail on the standards may be obtained from the Centre of Housing Rights and Evictions (COHRE). COHRE is the leading international NGO in the field of land, housing and property rights.
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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Art 12, 26

Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. No one shall be arbitrarily deprived of the right to enter his own country.
2. 3.
4.
Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION Art. 5(e)(iii) Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (e) Economic, social and cultural rights, in particular: (iii) (iv) (v) (vi) The right to housing; The right to public health, medical care, social security and social services; The right to education and training; The right to equal participation in cultural activities;
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Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention) provides that "everyone, without distinction as to race, colour, or national or ethnic origin," is entitled to equal enjoyment of rights, including "[t]he right to freedom of movement and residence within the border of the State." [FN143] UNIVERSAL DECLARATION OF HUMAN RIGHTS Art. 13(1),(2) Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State.
AMERICAN CONVENTION ON HUMAN RIGHTS Article 22. Freedom of Movement and Residence 1. Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law. Every person has the right to leave any country freely, including his own.
2.
INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION NO. 169 CONCERNING INDIGENOUS AND TRIBAL PEOPLES (1989) adopted 27 June 1989, revising the Indigenous and Tribal Populations Convention no. 107 of 1957. Article 16: Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.
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When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. Persons thus relocated shall be fully compensated for any resulting loss or injury. The following 13 States have ratified Convention 169 Concerning Indigenous and Tribal Peoples: Bolivia, Colombia, Costa Rica, Denmark, Ecuador, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway, Paraguay, and Peru.
International Declarations and Recommendations

VANCOUVER DECLARATION ON HUMAN SETTLEMENTS (1976), adopted by the UN Conference on Human Settlements in 1976. Chapter II (A.3) states: The ideologies of States are reflected in their human settlement policies. These being powerful instruments for change, they must not be used to dispossess people from their homes or land or to entrench privilege and exploitation. The human settlement policies must be in conformity with the declaration of principles and the Universal Declaration of Human Rights. United Nations Resolutions/Declarations/Reports Security Council resolutions: 1287 (2000) [on Georgian conflict] Art 8. Reaffirms the unacceptability of the demographic changes resulting from the conflict and the imprescriptible right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions, in accordance with international law and as set out in the Quadripartite Agreement of 4 April 1994 (S/1994/397, annex II), and calls upon the parties to address this issue urgently by agreeing and implementing effective measures to guarantee the security of those who exercise their unconditional right to return, including those who have already returned;
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1244 (1999) [on Kosovo conflict] Preamble. Reaffirming the right of all refugees and displaced persons to return to their homes in safety, 1199 (1998) [on Kosovo conflict] Preamble. Reaffirming the right of all refugees and displaced persons to return to their homes in safety, 1036 (1996) [on Georgia conflict] Preamble. Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement of 14 April 1994 on voluntary return of refugees and displaced persons (S/1994/397, annex II), 971 (1995) [on Georgia conflict] Preable. Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement on voluntary return of refugees and displaced persons (S/1994/397, annex II), signed in Moscow on 4 April 1994, 947 (1994) Affirms the right of all displaced persons to return voluntarily to their homes of origin in safety and dignity with the assistance of the international community 876 (1993) [on Abkhazia and Georgia conflict] Art 5. Affirms the right of refugees and displaced persons to return to their homes, and calls on the parties to facilitate this; 859 (1993) further affirms [the] ... [r]ecognition and respect for all displaced persons to return to their homes in safety and honor 820 (1993) [on Bosnia and Herzegovina]
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Preamble. Insisting that all displaced persons be enabled to return in peace to their former homes, General Assembly resolutions: 51/126 [on Israel/Palestine conflict] Art 1. Reaffirms the right of all persons displaced as a result of the June 1967 and subsequent hostilities to return to their homes or former places of residence in the territories occupied by Israel since 1967; Sub-Commissions Resolutions Sub-Commission on the Prevention of Discrimination and Protection of Minorities resolutions 1998/26 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities resolution 1998/26 entitled Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons on 26 August 1998: Conscious that human rights violations and breaches of international humanitarian law are among the reasons why refugees, as defined in relevant international legal instruments, and internally displaced persons flee their homes and places of habitual residence, Recognizing that the right of refugees and internally displaced persons to return freely to their homes and places of habitual residence in safety and security forms an indispensable element of national reconciliation and reconstruction and that the recognition of such rights should be included within peace agreements ending armed conflicts, Recognizing also the right of all returnees to the free exercise of their right to freedom of movement and to choose ones residence including the right to be officially registered in their homes and places of habitual residence, their right to privacy and respect for the home, their right to reside peacefully in the security of their own home and their right to enjoy access to all necessary social and economic services, in an environment free of any form of discrimination, Conscious of the widespread constraint imposed against refugees and internally displaced persons in the exercise their right to return to their homes and places of habitual residence, Also conscious that the right to freedom of movement and the right to adequate housing includes the right of protection for returning refugees
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and internally displaced persons against being compelled to return to their homes and places of habitual residence and that right to return to their homes and places of habitual residence must be exercised in a voluntary and dignified manner, Aware that intensified international, regional and national measures are required to ensure the full realization of the right of refugees and internally displaced persons to return to their homes and places of habitual residence and are indispensable elements of reintegration, reconstruction and reconciliation, 1. Reaffirms the right of all refugees, as defined in relevant international legal instruments, and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish; 2. Reaffirms also the universal applicability of the right to adequate housing, the right to freedom of movement, the right to privacy and respect for the home and the particular importance of these rights for returning refugees and internally displaced persons wishing to return to their homes and places of habitual residence; Confirms that the adoption or application of laws by States which are designed to or result in the loss or removal of tenancy, use, ownership or other rights connected with housing or property, the active retraction of the right to reside within a particular place, or laws of abandonment employed against refugees or internally displaced persons pose serious impediments to the return and reintegration of refugees and internally displaced persons and to reconstruction and reconciliation; Urges all States to ensure the free and fair exercise of the right to return to ones home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems; Invites the United Nations High Commissioner for Refugees, in consultation with the United Nations High Commissioner for Human Rights, to develop policy guidelines to promote and facilitate the right of all refugees and, if appropriate to her mandate, internally displaced persons, to return freely, safely and voluntarily to their homes and places of habitual residence;
3.
4.
5.
Sub-Commission on the Prevention of Discrimination and Protection of Minorities resolutions 1994/24
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The right to freedom of movement The Sub-Commission on Prevention of Discrimination and Protection of Minorities, Reaffirming the right of everyone lawfully within the territory of a State to liberty of movement and freedom to choose his residence, and the prohibition of arbitrary deprivation of the right to enter one's own country as set out in article 12 of the International Covenant on Civil and Political Rights and article 13 of the Universal Declaration of Human Rights, 1. 2. 1. Affirms the right of persons to remain in peace in their own homes, on their own lands and in their own countries; Also affirms the right of refugees and displaced persons to return, in safety and dignity, to their country of origin and/or within it, to their place of origin or choice;
Other Sources of Relevant International Standards UNHCR, Handbook on Voluntary Repatriation, Geneva, UNHCR (1996). The Handbook stresses, for instance, that the mandate of UNHCR includes promoting the creation of conditions that are conducive to voluntary return in safety and with dignity and promoting the voluntary repatriation of refugees once conditions are conducive to return. In addition, it states that the recovery and restitution to returnees of their land or other immovable and movable property which they may have lost or left behind are to be included in any tripartite agreement or any declaration of amnesties and guarantees. Annex 5. Sample Tripartite Agreement ARTICLE 8 Freedom of Choice of Destination The Parties and UNHCR reiterate that the refugees shall be free to return to, and settle in, their former places of residence or any other places of their choice within (country of origin). Annex 6. Sample Declaration of Amnesties and Guarantees SAMPLE DECLARATION OF AMNESTIES AND GUARANTEES The Government of (country of origin) and (if applicable, the other party/parties to a conflict), Confident that the "Political Settlement" or "Peace Accord" signed between ........... and ........... has created conditions for a lasting peace, stability and social and economic progress in (country of origin); Underlining the right and freedom of all ............. living outside their country as refugees to return home to their places of habitual residence or to establish residence in any part of the country, and to participate, along with all other .............., in the process of national reconciliation and consolidation of peace, democracy and social development;
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Daniel Fitzpatrick
COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, GENERAL RECOMMENDATION XXII (fortyninth session), A/51/18 (1996) Article 5 all ... refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety
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Daniel Fitzpatrick. Restoring and Confirming Rights To Land

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Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

A UNDP / OXFAM REPORT

Dr. Daniel Fitzpatrick

and Replacement of Lost Land Title .......... ..

... ... ...

3.2.1. Issue of Temporary Documentation 3.2.2. Assistance to Local Government

Specific Recommendations and Programs of Assistance 4.1. Assistance to BPN

4.2. Assistance to Local Government

4.3. Assistance for Civil Society Monitoring and Advocacy

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

2. Context and Background

Ibid, II-9. Ibid, II-6, 10. Ibid, II-5.

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Current Proposals and Programs

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

The Bappenas Master Plan, supra n 1, V-12 V-18. Ibid, VI-1.

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Ibid. Ibid, VI-2.

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Specific Recommendations and Programs of Assistance

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Art 12, 26

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

International Declarations and Recommendations

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

Sub-Commission on the Prevention of Discrimination and Protection of Minorities resolutions 1994/24

Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

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