Draft Papua New Guinea Involuntary Resettlement Policy 17 July 2013 - ASI
Short Description
First draft of the proposed PNG Involuntary Resettlement Policy as part of the 2013 review of the mining sector....
Description
POLICY DOCUMENT
Draft Papua a New w Guine ea Involunta ary Resettlemen nt Poliicy
July 12, 2013 2
Document genesis, history and status This document has been prepared by rePlan Inc., an independent consulting firm based in Canada that specialises in managing the social impacts and risks associated with resource extraction projects (www.replan.ca), under contract to Adam Smith International (ASI).
Revision
Date issued
Reviewed by
00
July 12, 2013
Jason Petrunia, rePlan Inc.
Approved by
Date approved
First Draft
Distribution of copies – Revision Copy no
Quantity
Revision type
Issued to
Email
Julia Baxter, ASI
Email
Asavi Kendua, MPGH
Email
Harry Kore, MPGH
Email
Joyce Morlin, MRA
Email
Eric Blackburn, WB
Acronyms/Abbreviations ASI
Adam Smith International
CF
Compensation Framework
DEC
Department of Environment and Conservation
DLPP
Department of Lands & Physical Planning
EIA
Environmental Impact Assessment
GMS
Grievance Management System
GoPNG
Government of Papua New Guniea
IFC
International Finance Corporation
ILG
Incorporated Land Group
IRP
Involuntary Resettlement Policy
LRP
Livelihood Restoration Program
MOA
Memorandum of Agreement
MPGM
Mineral Policy & Geohazards Management
MRA
Mineral Resources Authority
NGO
Non-Governmental Organization
PIIM
Project Induced In-migration
PNG
Papua New Guinea
PS
Performance Standards
RAP
Resettlement Action Plan
RNF
Resettlement Negotiation Forums
SIA
Social Impact Assessment
WB
World Bank
Table of Contents Part A – Executive Summary ............................................................................................................................................................................ 1 A. Section 1.................................................................................................................................................................................................................. 2 1. Heading 1 ....................................................................................................................................................................................................... 2 1.1. Heading 2 ................................................................................................................................................................................................ 2 1.1.1. Heading 3 ..................................................................................................................................................................................... 2 Diagram title .......................................................................................................................................................................................................... 2 Part B – Introduction ............................................................................................................................................................................................. 3 A. Introduction ............................................................................................................................................................................................................ 4 1. Scope of Application ............................................................................................................................................................................... 4 2. Administration ............................................................................................................................................................................................... 4 3. Purpose ............................................................................................................................................................................................................. 4 4. Goals and Objectives .............................................................................................................................................................................. 4 B. Institutional and Legal Framework ......................................................................................................................................................... 5 1. Institutional Framework .......................................................................................................................................................................... 5 2. Social Structure .......................................................................................................................................................................................... 5 3. Customary Land Management System ....................................................................................................................................... 5 4. Incorporated Land Groups .................................................................................................................................................................. 6 5. Legal Framework ........................................................................................................................................................................................ 6 6. Process of Land Acquisition .............................................................................................................................................................. 7 Part C – Overview of Land Acquisition and Involuntary Resettlement (Who Uses this Policy) ............................ 8 A. Overview.................................................................................................................................................................................................................... 9 1. What is Land Acquisition and Displacement? ....................................................................................................................... 9 2. What Processes are Required to Manage Displacement? ............................................................................................ 9 3. This Document / Policy......................................................................................................................................................................10 Part D – Principles ............................................................................................................................................................................................... 11 Part E – Land Acquisition Process ............................................................................................................................................................ 14 A. Land Acquisition Process............................................................................................................................................................................15 B. Requirements and Approvals....................................................................................................................................................................18 C. Land Acquisition and Resettlement Requirements ....................................................................................................................19 1. Identification and Minimization of Displacement Impacts ...........................................................................................19 2. Engagement and Disclosure .............................................................................................................................................................19 3. Baseline and Data Management ...................................................................................................................................................20 4. Eligibility and Entitlements .................................................................................................................................................................20 5. Livelihoods Planning...............................................................................................................................................................................22 6. Resettlement Site and Physical Planning ................................................................................................................................23 7. Land Management and Tenure Security .................................................................................................................................25 8. Influx Management ..................................................................................................................................................................................25 9. Speculation Management ...................................................................................................................................................................25 10. Linkages to Long-term Socio-economic Community Development.......................................................................26 11. Vulnerable People and Groups ......................................................................................................................................................26 12. Grievance Mechanisms .........................................................................................................................................................................27 13. Roles and Responsibilities .................................................................................................................................................................28 14. Planning and Budgeting ......................................................................................................................................................................28 15. Monitoring and Evaluation .................................................................................................................................................................28 Definitions .................................................................................................................................................................................................................. 30 Appendices ................................................................................................................................................................................................................ 35
Draft Papua New Guinea Involuntary Resettlement Policy
Part A – Executive Summary
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A. Section 1 1. Heading 1 To be completed post Draft Review.
1.1. Heading 2 1.1.1. Heading 3 Paragraph Heading Body Copy
Diagram title
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Draft Papua New Guinea Involuntary Resettlement Policy
Part B – Introduction
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A. Introduction 1. Scope of Application The Involuntary Resettlement Policy (IRP) is to be applied in all instances of land acquisition and resultant involuntary resettlement (displacement) for mineral sector projects in Papua New Guinea. It applies to both physical and economic displacement. The IRP is therefore expected to apply to all projects that must acquire land held under either customary title or freehold title, which combined, constitutes the majority of land in Papua New Guniea (PNG). After the IRP has been enacted, should mineral sector projects encounter discrepancies related to involuntary resettlement between national law and the IRP, the IRP shall apply.
2. Administration The IRP is to be administered by the Mineral Resources Authority (MRA), with final authority vested in the Minister for Mining. Review and approvals of project-related resettlement submissions will be aligned with the Mining Lease Application process and coordinated by MRA. It is expected that MRA will work closely with the Department of Environment and Conservation (DEC) and other Government of Papua New Guinea (GoPNG) ministries and departments to ensure consistency and alignment between this IRP and other laws, policy and standards.
3. Purpose The purpose of this IRP is to guide project-related land acquisition and involuntary resettlement practices and conduct within the mining sector. The IRP outlines required practice for the scoping, planning, implementation (including monitoring and evaluation) of both physical and economic displacement for the purpose of project-related development.
4. Goals and Objectives The goal of the IRP is to ensure that social risks and impacts resulting from resettlement are properly identified and mitigated throughout the project design, development and implementation phases. This IRP contains the following objectives: a)
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provide national direction on technical requirements for resettlement;
b)
provide for the role of government, the project proponent and affected communities in the resettlement process; and
c)
provide direction to application of international standards within resettlement practices in PNG.
In meeting these objectives, this IRP sets out the broad principles, policies and procedures that will govern projectrelated land acquisition and resettlement from exploration through to mine operation and closure. Land acquisition must be conducted in accordance with national laws in coordination with various institutions. Legislation related to land ownership, land access and customary land tenure is currently evolving in PNG, as the government tries to balance development priorities and the rights of clans with customary land management systems. The following institutions, laws and regulation provide a summary of the institutional and legal framework governing land acquisition and compensation related activities.
Draft Papua New Guinea Involuntary Resettlement Policy
B. Institutional and Legal Framework Land acquisition must be conducted in accordance with national laws in coordination with various institutions. Legislation related to land ownership, land access and customary land tenure is currently evolving in PNG, as the government tries to balance development priorities and the rights of clans with customary land management systems. The following institutions, laws and regulation provide a summary of the institutional and legal framework governing land acquisition and compensation related activities.
1. Institutional Framework PNG is a constitutional monarchy and Commonwealth Realm recognising Queen Elizabeth II as head of state. The Queen is represented by the Governor-General who is elected to a six year term by members of the National Parliament. The Constitution provides for three levels of government - national, provincial and local. The National Parliament is a 111-member unicameral legislature, elected for a five-year term by universal suffrage. Members of the National Parliament are elected from 89 single-member electorates and 22 regional electorates. The regional electorates correspond to PNG's 20 provinces, plus the Autonomous Region of Bougainville and the National Capital District. Members from regional electorates also serve as provincial Governors. After a general election, parliament elects a Prime Minister who heads the national government and selects a cabinet known as the National Executive Council. Currently, Papua New Guinea governments are protected by the Constitution from no-confidence motions for the first 18 months of a five-year term. Once the 18-month moratorium expires, a successful no-confidence motion results in an alternative Prime Minister (nominated in the no-confidence motion) being able to form a new government without the need for a national election, unless the no-confidence motion occurs during the last twelve months of a five-year term in which case a national election must be held. The national government is responsible for national finance, infrastructure, defense, foreign relations, trade, schools and hospitals and the Provincial Government can levy taxes and is responsible for local education, industry and business development. The Minister of Provincial and Local Government Affairs is responsible for local government, which comprises 325 local-level governments (LLGs) in 89 districts. Local elections are held every five years. LLGs have an average of 19 council members and may have up to three
additional members appointed to represent various interest groups. Local governments are responsible for water supply and, jointly with provincial governments, for health and environmental protection, waste disposal, roads, economic promotion and tourism. The judiciary has the Supreme Court, National Court and local and village courts and operates independently from the legislature or public service. There are also special courts concerned with family law, customary land disputes and civil cases relating to the mining sector. The "underlying law" – that is, the common law of Papua New Guinea – consists of the Constitution, “customary law” derived from common customs of various peoples of Papua New Guinea, and the common law of England as it stood on the date of Papua New Guinea’s independence (16 Sept. 1975), and thereafter the decisions of PNG's own courts.
2. Social Structure Traditionally, an individual’s identity was grounded in his or her kin clan. A clan is a basic social unit that is comprised of extended family networks. Most traditional leaders achieved influence by building extensive networks of exchange partners and supporters. The characteristic "big man" was hardworking, skilled in oratory, personable, intelligent, and generous. His function was not to command but to influence his society through his example. Big men still exist, but their influence has lessened because they cannot control the global forces affecting their communities. Clans have specific residential rights to their customary land, and clan membership is inherited through unilateral decent (either matrilineal or patrilineal). Larger clans are often made up of sub-clans, and multiple clans will make up a tribe. Clans usually function as political units, protecting the boundaries of their clan land, negotiating with other clans regarding compensation or bride price payments, and organizing gardening and other communal activities.
3. Customary Land Management System Typically, customary land tenure in PNG constitutes land being held by clans as a communal asset, rather than by individuals. Land is important to Papua New Guineas, as it is a link to their past and a way of sustaining their beliefs and livelihoods. Different clans ascribe different ownership and user rights to their different members, creating a potentially constant rearrangement of power, authority and land tenure, including of clan property boundaries. This means that land is not a saleable commodity, and that land rights cannot be alienated in perpetuity. Rather, land rights must be leased. The State has no authority over customary land other than 5
provisions of the Land Act (1996) to acquire customary land for public purposes.
4. Incorporated Land Groups Legislation is in place that allows customary land groups to use their land in the formal economy. One of the most common ways is the incorporation of the customary landowner group so that it is formally recognized as a legal body by the legal system. The Incorporated Land Group (ILG) becomes the representative of the tribe in the formal legal system and is able to enter into agreements and make decisions on behalf of the customary group. Incorporated land groups can be an effective way for customary groups to engage in the formal economy and legal system and can help to unlock the productive potential of land. However, they require mechanisms to educate and inform people of their functions and capabilities, and the support of government to avoid conflict and disputes and ensure they are effectively managed.
5. Legal Framework Constitution (1975) Regarding land acquisition, the Constitution protects against the compulsory acquisition of property, or interest in or right over property, unless the property is required for a justifiable public purpose, and fair compensation is provided. The Constitution also stipulates that land may not be acquired by non-citizens, meaning that the government must act as an intermediary body between foreign nationals or business and citizens, where citizens wish to make their land available for acquisition. The Constitution also stipulates that just compensation must be made on just terms by the expropriating authority. Mining Act (1992) The Mining Act confers mineral rights to owners of tenements through a mining lease. Within the Act, Lease holders have the right to enter and occupy land over which the mineral lease was granted for the purposes of mining the minerals on that land and carry on such operations and undertake such works as may be necessary or expedient for that purpose as long as the owners of surface rights are fairly compensated, including in the following cases:
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a)
being deprived of the possession or use of the natural surface of the land;
b)
damage to the natural surface of the land;
c)
severance of land or any part thereof from other land held by the landholder;
d)
any loss or restriction of a right of way, easement or other right;
e)
the loss of, or damage to, improvements;
f)
in the case of land under cultivation, loss of earnings;
g)
disruption of agricultural activities on the land; and
h)
social disruption.
Moreover, the Act states that “compensation shall be determined with reference to the values for economic trees published by the Valuer-General.” The Act also stipulates that “No compensation shall be payable and no claim for compensation shall lie, whether under this Act or otherwise: a)
in consideration of permitting entry on to the land for exploration or mining purposes;
b)
in respect of the value of any mineral which is or may be on the land;
c)
by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral, or
d)
other than as provided for in this Act.
Lastly, the Act states that, “where any land or improvements, adjoining or in the vicinity of the land the subject of a tenement, is or are injured or depreciated in value by the exploration or mining of the tenement, the landholders of that land are entitled to compensation for all loss or damage sustained and the amount of such compensation shall be determined as provided in this Part.”
Land Act (1996) The primary government body responsible for land administration is the Department of Lands and Physical Planning (DLPP). The DLPP is responsible for national land mapping, land surveys and valuation, and title registration in accordance with the 1996 Land Act. Accordingly, the MRA and proponents must work through the DLPP in order to acquire land for projects. The Land Act presents the framework for land acquisition in PNG, and in accordance with the Constitution, establishes that land may only be leased to foreign individuals or business, rather than acquired by nonnational outright. The Act also details how compensation for land must be approached. It stipulates that compensation must take into account both the value of land and any acquisition related depreciation of affected persons remaining land holdings.
Land (Tenure Conversion) Act (1963) The Land Tenure Conversion Act outlines a legislative means for land held customarily to be converted to freehold land. However, the provisions of the Act are not in force, as the legislative body responsible for the
Draft Papua New Guinea Involuntary Resettlement Policy
regulation of the conversion process (the Land Title Commission) has not been fully operational for decades.
customary land to freehold land is not operational, there remain two processes for gaining access to customary land.
Land Disputes Settlement Act (1977)
The first mechanism is the lease lease-back system, whereby an owner of customarily held land may lease land, nominally to the Minister of Lands, who’s office may then authorize the sublease of the land to a third party designated by the customary owner. This type of sublease may be for a period of up to 99 years, after which the land reverts to customary ownership. However, the misuse of this process has produced considerable conflict between customary owners and between customary owners and the government. As a result, this mechanism is currently the subject of a governmental review and may be abolished.
The Land Disputes Settlement Act stipulates that disputes related to customary land rights must first be addressed through a formal mediation process before progressing through the court system. If this mediation process fails, disputes are heard first by local land courts and may be appealed in district land courts. Land Groups Incorporation (Amendment) Act (2009) and Land Registration (Amendment) Act 2009 The Land Groups Incorporation (Amendment) Act reaffirms the rights of customary tenure and the leasehold system by which non-citizens can acquire access to land. It also recognizes both ownership rights and use rights. The Land Registration (Amendment) Act 2009 permits freehold titles within townships and municipal areas. 2000 Environmental Act Currently, social impact assessment for extractive projects falls under the purview of the 2000 Environmental Act. This Act stipulates that social impact assessment is an integrated component of a project’s environmental impact assessment. Specifically, the Environment Act stipulates that a project’s potential social impacts be identified in an Environmental Impact Statement, in accordance with the DEC’s Social Impact Assessment Guideline. Following the enactment of the IRP, where the Environmental Impact Statement identifies resettlement as a potential impact, the MRA will collaborate with the DEC to ensure that the requirements of the IRP are met. Physical Planning Act 1989 Physical planning requirements are established in the 1989 Physical Planning Act. The Act applies to towns and other areas declared by the government to be planning areas of national interest. Currently, very little rural land is designated as a planning area of national interest, but such designation is sometimes given to land near extractive project facilities. Oversight regarding planning is provided by a provincial physical planning board, where present, or alternatively by the National Physical Planning Board.
The second mechanism is customary land registration. This requires, first, the organization of customary land owners with claim to a given parcel of land into an ILG. Secondly, the parcel must be evaluated for competing land claims and if none are present, registered as belonging to the relevant ILG. Once an ILG has been incorporated and its land successfully registered, the ILG is invested with the authority to manage the land, and can sign agreements with third parties that transfer rights to use the land. For an ILG to be incorporated, consensus within the clan must documented, showing that the ILG has a clear mandate from the clan to act as its representative body regarding land administration. Once this consensus has been established, the ILG must submit a charter and clear documentation identifying all the members of the clan the ILG represents. This list of clan members must be exhaustive, as once a land parcel is registered to and ILG, only those listed as members of the ILG’s clam will be considered as having rights to that land parcel. Finally, the land parcel being registered must be surveyed by a certified surveyor, clearly delineating the boundaries of the area the relevant ILG will have authority over. It is currently expected that customary land registration and negotiation with ILGs will be the primary means by which extractive projects gain access to the land required for project development and operation. A summary of PNG laws and international best practice in the context of resettlement is included in Appendix A
6. Process of Land Acquisition Together, the legislation described above means that land acquisition for extractive projects in PNG is usually a complex process. Given that 97% of land is held under customary title, the relatively straightforward mechanisms available for acquiring state owned landed are not often applicable. Rather, it is customary land that must be acquired. As the legal process of converting land from 7
Part C – Overview of Land Acquisition and Involuntary Resettlement (Who Uses this Policy)
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Draft Papua New Guinea Involuntary Resettlement Policy
A. Overview 1. What is Land Acquisition and Displacement? The process of land acquisition is triggered when a project proponent requires access to land to explore, develop and operate projects in the mineral sector. Often, this land will already be in use in some manner, whether people physically reside on the land, use the land as a means of livelihood, and / or the land constitutes, in whole or in part, the traditional lands of a community. Given this, acquiring land or land use rights for an extractive project may cause: a)
physical displacement, which means that land acquisition constitutes affected persons losing their homes; and/or
b)
involuntary, irrespective of the level of local support for the process. The MRA and the government of PNG have committed to requiring that the proponent comply with international best practice, as established by the World Bank’s Operational Policies and the International Finance Corporation (IFC) Performance Standards. An overview of the IFC Performance Standards are appended in Appendix B.
2. What Processes are Required to Manage Displacement? In keeping with international best practice, the government of PNG will ensure that the project proponent carefully manage land acquisition and any related displacement through: a)
resettlement processes, if the acquisition causes any physical displacement; or
b)
compensation processes, if the acquisition causes economic displacement but no physical
displacement
economic displacement, which means that land acquisition constitutes affected persons losing their assets or access to assets, and as a result, their means of livelihood.
It is noted that where economic displacement is significant, physical displacement may be required in order to move the economically displaced to a location where they can restore their livelihoods. Displacement can be either temporary or permanent in nature. It can be complete, in that all assets of a given person or household are affected, or partial, in that only some assets are affected. Land acquisition and the resultant displacement can also be either voluntary or involuntary. Acquisition is voluntary where: a)
the seller is willing to sell their land / land use rights to the buyer,
b)
the seller fully understands the implications of the selling their land or use rights,
c)
a free-market for land exists such that the seller could sell to another buyer if they chose; and
d)
neither the buyer nor the government can resort to expropriation if a potential seller ultimately decides not to sell.
It is not expected that these conditions will often be met in relation to mining projects. This is primarily because PNG law allows for compulsory expropriation of land for mining projects. Further, in contexts where land is collectively held, it is difficult to obtain and demonstrate informed consent from all owners and users. Where the above conditions are not demonstrated, land acquisition and any related resettlement is considered
These processes are high risk, for both the project proponent and for the persons and communities displaced. For the proponent, such processes are often controversial, costly and time-consuming, and if mismanaged can cause social unrest and delays to project development. For those displaced, such processes are stressful and complicated, and if mismanaged can result in long-term impoverishment. International experience indicates that the main characteristics of resettlement-induced impoverishment are: a)
landlessness - loss of land assets, including common property;
b)
joblessness- loss of workplaces and markets;
c)
homelessness- loss of shelter;
d)
general economic set-back;
e)
increased rates of crime, disease and mortality;
f)
food insecurity and malnutrition; and
g)
social disorganization.
Typically, landlessness is especially prominent with involuntary resettlements, either alone or correlated with the other hazards listed above. However, when land acquisition and resettlement / livelihood restoration processes are properly managed, the positive consequences of these processes can include: a)
for the proponent company – an ability to define, develop and operate a given project in accordance with government licensing requirements, positive relationships with local communities, and a reputation as a socially responsible company; and, 9
b)
for those displaced – improved living conditions and quality of life.
3. This Document / Policy This IRP is to be used by the project proponent, Government of PNG, and communities in guiding projectrelated land acquisition and resettlement activities to effectively manage the risks and impacts resulting from project-induced displacement. Key aspects of risk management, brought forth in this IRP include: a)
providing a complete description of the specific project under consideration, those affected, and displacement-related impacts;
b)
presenting the negotiations and stakeholder engagement process that accompanied Resettlement Action Plan (RAP) / Compensation Framework (CF) preparation; and
c)
specifying the procedures and actions required to mitigate and redress adverse effects, compensate for losses, provide development benefits to those affected, and otherwise manage project-induced displacement impacts.
Finally, this IRP applies regardless of the stage of development of a particular project, from new projects to the expansion of existing projects. In certain cases this IRP can be utilised as a guide in the review and assessment of projects currently managing displacement impacts. Within this Document, key terminology is italicised and defined in the glossary. Proponent refers to the holder of an exploration license, mining lease, special mining lease, alluvial mining lease or mining easement. Where a responsible party is not identified in policy, it is assumed that MRA will be the responsible authority.
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Draft Papua New Guinea Involuntary Resettlement Policy
Part D – Principles
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The following core Principles will guide the planning and implementation of project activities that involve physical or economic displacement. Principle 1: Resettlement must be avoided where possible, and minimized and mitigated where unavoidable. The project proponent must demonstrate that different project designs have been considered with an eye to avoiding resettlement. Where resettlement is unavoidable it must be demonstrated that the scope of resettlement cannot be reduced. In the case of private sector mine development, this action is to be considered as part of the Mine’s Social License to Operate. Principle 2: Resettlement must result in the improvement of displaced persons’ standards of living. The proponent will establish a resettlement planning process that provides for an increase or improvement in displaced persons standards of living over time as mitigation programs and community development plans retain investment in local communities, and generate local economies and other benefits.
Principle 3: Resettlement must improve the livelihoods of displaced persons. The proponent will ensure the proper identification of the full range of project related livelihood impacts. The proponent will ensure that livelihood impacts are mitigated – i.e. livelihoods are restored and improved – and mitigation measures documented in the project RAP.
Principle 4: Resettlement planning must be participatory, conducted through the free, prior and informed consultation of displaced people and affected communities. The proponent will ensure that consultation with local communities and interested parties is conducted in an open, transparent and genuine manner. The proponent will ensure that affected and interested parties receive the information and time they need in order to provide informed input into projection decision-making processes related to resettlement.
Principle 5: The resettlement process must be informed by a resettlement database which contains information on the socio-economic profile and the assets owned and used by each displaced household. The proponent will ensure that resettlement planning and impact mitigation programs are well informed by primary data collected on affected households and that the data is maintained within a project database. Data collected should include at least a census of affected persons, socio-economic household surveys and immovable and 12
moveable asset surveys conducted at the level of communities, households, businesses and institutions. Principle 6: Fair and equitable compensation must be negotiated and assistance must be provided for relocation. The proponent will ensure that compensation for assets is negotiated with affected groups prior to loss of assets and amounts to no less than the replacement cost of those assets, including any transactional or other relocation costs. The proponent will involve government departments as necessary to identify national standards for compensation and initiate negotiations based on the same. The proponent will ensure that any and all compensation agreed to within the framework of negotiations is delivered in a timely fashion, and that compensation for land and residential housing in particular is provided prior to displacement.
Principle 7: The resettlement process must consider and account for project impacts on marginalized and
vulnerable groups.
The proponent will ensure that individuals and groups, who by virtue of age, gender, ethnicity, poverty, social status, or some other marker are prone to greater social disorder as a direct or indirect result of resettlement will be identified and supported throughout the resettlement planning and implementation process. As necessary, vulnerables programming will be developed with the overall objective of helping vulnerable people transition into a more secure and self-reliant condition.
Principle 8: Resettlement budgeting and scheduling must be accounted for in up-front project capital costs and project plans. The proponent will ensure that all resettlement costs, including contingency costs, are accounted for up-front within the project’s capital budget to ensure appropriate funding of the costs associated with resettlement planning and implementation. Additionally, the proponent will ensure that sufficient time is allocated to resettlement planning and execution prior to or in conjunction with project planning. Principle 9: The resettlement process must include the establishment of an independent monitoring system to evaluate the achievement of the objectives established in the RAP. Using the resettlement database, the proponent must develop a meaningful set of indicators to monitor the relative success of mitigation programming and the resettlement process. The monitoring process must include independent, external monitoring fully funded by the proponent. Independent monitors will have full access to the project baseline and database and prepare monitoring
Draft Papua New Guinea Involuntary Resettlement Policy
reports for review by internal and external stakeholders, including government.
Principle 10: The resettlement process must include the establishment of a transparent, systemic and independent grievance mechanism. The proponent must develop and fund a grievance mechanism with access to redress process outside the project, if required. Grievance mechanisms must be designed so that they are accessible to all affected persons, including vulnerable people, and transparently administered. All grievances lodged through the system must be documented, and the monitoring of grievance resolution incorporated into resettlement monitoring and evaluation.
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Part E – Land Acquisition Process
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4.
A. Land Acquisition Process 1.
The proponent shall prepare Resettlement Management Plans, based on the Principles contained in Section 5, that describe policies and actions that are to be followed in minimizing or managing the impacts of physical or economic displacement. All Resettlement Management Plans shall be reviewed and approved by MRA as part of the mine permitting process.
2.
Resettlement Management Plans shall conform to the laws and regulations of the GoPNG.
3.
Resettlement Management Plans shall be prepared by the proponent in a coordinated fashion with the mineral project life cycle as follows: a)
Table 1: IRP Requirements by Project Phase
Exploration 1.1 Define Land Take 1.2 Describe Context 1.3 Describe Impacts to Assets 1.4 Analyse Stakeholders 1.5 Define Entitlements and Eligibility 1.6 Engage Stakeholders and Undertake Individual Negotiations 1.7 Prepare a Resettlement Scoping Document Feasibility 1.1 Define Land Take 1.2 Describe Context 1.3 Describe Scope of Displacement 1.4 Analyse Stakeholders 1.6 Identify Potential Risks and Impacts 1.7 Prepare a Resettlement Scoping Document
Exploration - A Resettlement Scoping Study is to be prepared in the event of economic displacement or minor physical displacement resulting from exploration activities that identifies consultation processes and a compensation framework complete with entitlements, and eligibility and compensation policies.
b)
Feasibility - A Resettlement Scoping Study is to be prepared in the feasibility stage of project development that defines potential land take; physical, institutional and social context of the project; potential scope of displacement; potential stakeholders; and possible risks and impacts associated with land acquisition.
c)
Approvals - A Resettlement Action Plan or Compensation Framework is to be prepared in the event of physical displacement or economic displacement, respectfully, prior to project construction (see Table 1 – IRP Requirements by Project Phase) which details results of planning activities, consultation and collective negotiations with those affected and the terms and conditions that will guide land acquisition processes. The content requirements of a Resettlement Action Plan appear in Appendix C.
d)
Construction and Operation - Regular monitoring reports that detail activities and results of individual household negotiations and delivery of compensation entitlements based on the collective agreements documented in the
Approvals 2.1 Analyse Requirement 2.2 Engage with Stakeholders 2.3 Undertake Needed Baseline Studies 2.4 Manage Grievances 2.5 Manage Data 2.6 Define Entitlement Policies 2.7 Define Eligibility Policies 2.8 Define Livelihood Restoration and Community Development Programs 2.9 Define Vulnerables Assistance Program Task 2.10 Plan Monitoring and Evaluation Program Task 2.11 Prepare Resettlement Management Plan (RAP or CF) 2.12 Disclose and Finalize Plan Construction and Operation 3.1 Continue Engaging with Stakeholders 3.2 Continue Managing Grievances 3.3 Undertake Individual Negotiations 3.4 Deliver Entitlements 3.5 Initiate Programs
Resettlement Management Plan.
e)
Closure - Subject to project-specific circumstance,
Resettlement Management Plans will establish
procedure for return of lands subject to closure and reclamation processes.
The basic activities in support of preparation of the above Resettlement Management Plans is detailed in Table 1 below.
5.
Where land is physically occupied, physical displacement is often accompanied by economic displacement so the vast majority of such processes 15
have to address both physical and economic
displacement. 6.
Where land is only economically occupied, the project proponent is required to undertake a compensation process as detailed in Figure 1, below.
7.
MRA may request a project proponent to prepare a Resettlement Framework as a precursor to a complete Resettlement Action Plan. A Resettlement Framework is in effect a “starter” Resettlement Action Plan, which identifies broad objectives, principles, policies, procedures, organizational arrangements, and the timeframe and cost for the resettlement process as-a-whole, including the preparation of a complete Resettlement Action Plan. The situations in which a proponent would prepare a Resettlement Policy Framework are:
8.
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a)
as a requirement of granting a Development License or in support of the Environmental and Social Impact Assessment for a given project; and
b)
if a site has sub-projects or multiple components that cannot be identified all at once, or that may be implemented sequentially over an extended period.
MRA will coordinate with Department of Environment to ensure requirements of Resettlement Management Plans meet the requirements of environmental permitting and granting of mine leases.
Draft Papua New Guinea Involuntary Resettlement Policy
Figure 1: Resettlement Process
17
B. Requirements and Approvals 9.
Typical land acquisition activities associated with each phase are presented in the table below, including: a)
type of land take – whether the area required is small scale or large scale, and whether the project’s occupation of that area will be temporary or permanent in nature;
b)
scope of displacement – whether the resulting displacement is economic and/or physical in nature, and limited or widespread in scale;
c)
type of process required – whether a compensation process or resettlement process is required;
d)
type of document required – whether a Resettlement Management Plan comprising either a Resettlement Scoping Study, Compensation Framework or Resettlement Action Plan is required; and
e)
condition of license – whether a Resettlement Management Plan is a condition of License approval and the type of License.
Table 2: IRP Requirements by Project Phase
18
Draft Papua New Guinea Involuntary Resettlement Policy
C. Land Acquisition and Resettlement Requirements 1. Identification and Minimization of Displacement Impacts 10. The proponent will scope social impacts, including displacement impacts, at the earliest stages of project design. The understanding of social impacts will be iteratively refined as more information on project design and the scope of environmental and other impacts becomes available. To the degree possible, project design will evolve to avoid and minimize displacement impacts. 11. If a Resettlement Scoping Study determines that resettlement will likely be required for a project, MRA will require a project proponent to prepare a Resettlement Framework in parallel with the environmental permitting process that outlines how the project proposes to develop any required RAP or CF. The Resettlement Framework will be submitted for review by the MRA, through the DEC. 12. The Resettlement Framework will provide socioeconomic characteristics of the Project Area, including details on: a)
the socio-economic characteristics of the Project Area including but not limited to demographic and economic information;
b)
direct and indirectly impacted communities and their relationship to the Mine Footprint;
c)
potential displacement-related impacts, including type of impacts and estimates of number of affected persons; and
d)
socio-economic units, including number of clans and clan conceptual boundaries in relation to land takes.
13. Where they arise, unanticipated displacement impacts related to project activities will continue to be identified throughout the life of the Project. Where they arise, these impacts will be mitigated in accordance with this IRP.
2. Engagement and Disclosure 14. The proponent has an obligation to fully consult and engage with affected persons and communities in cases of land acquisition and compensation.
Stakeholder engagement will be iteratively conducted throughout all development phases. 15. The parameters of land acquisition and related displacement impacts will be transparently communicated to affected and potentially affected persons and organizations as well as their respective representatives at local, district, provincial and national levels by representatives of the proponent and where required by representatives of the MRA. 16. Consultation will serve as a means for project stakeholders’ perceptions and concerns to shape resettlement design and inform development and implementation of Resettlement Management Plans. In addition to the more formal socio-economic and asset surveys, engagement activities will include but not be limited to: a)
meetings with government to receive feedback on expected impacts and map affected stakeholders;
b)
scoping consultations with directly affected persons to identify concerns, potentially vulnerable groups, and emergent social issues;
c)
focus groups to capture and discuss more qualitative and intangible social data such as communities’ priorities, development goals and social structures;
d)
one on one interviews with key informants; and
e)
participant observation
17. The proponent will prepare and implement a stakeholder engagement program specific to the land acquisition process. The frequency and formality of stakeholder engagement will be greater where impacts are more significant and lesser where impacts are less significant. The proponent will be responsible for the creation and management of an appropriate resettlement negotiations forum to define the terms and conditions that will guide land acquisition as follows: a)
where physical displacement or economic displacement is required, a resettlement negotiations forum will be a formally constituted made up of representatives of local government, technical specialists, local land owner associations, and local community members elected by the community with parity in women representation;
b)
where only limited economic displacement is required, a compensation negotiations forum will be constituted, the scope of which will depend on the scale of displacement impacts, as well as the preferences and needs of those affected; and
c)
at the discretion of the MRA, the requirement for a negotiations forum may be reduced to individual negotiations where displacement impacts are of low significance, including where: 19
impacts are temporary;
only a small portion of households’ impacts are directly impacted and it is straightforward to replace or compensate for these assets;
such a small number of households are impacted that there does not need to be a forum for negotiations; and
negotiations forums will be moderated by a third party who will negotiate directly with the project proponent and communities on the approach to resettlement planning, including eligibility and entitlement planning.
18. The proponent will ensure that all engagement activities are free of intimidation or coercion, and all participants are aware of their rights under national law and international standards. 19. MRA will ensure that local communities have the capacity to engage meaningfully with a proponent. Where capacity is limited then a proponent will ensure affected communities are provided with training around their rights under national law and international law and best practice and provided with negotiation support. In many cases it will beneficial for third party representatives to be engaged by the proponent to work for the communities. 20. The proponent will meet, at a minimum, the following engagement and disclosure requirements: a)
project announcement to officially start the approvals phase of the mine development process and notify affected communities about the project and possible displacement-related impacts;
b)
a community meeting to review the potential impacts from the project, including known displacement impacts with all affected persons;
c)
disclosure for a 60-day comment period for a final Resettlement Action Plan and a 30-day comment period for a Compensation Frameworks with preparation of the official version of the document in English with non-technical summaries translated/communicated in local languages; and
d)
announcement of a cut-off date.
Recommendations for the identification of displacement impacts are included in Appendix D 22. In the completion of RAP’s and CF’s, a proponent shall undertake census and asset surveys of all households that will be displaced by a project and assets impacted by a project. The results of census and asset surveys serve as a formal inventory and legal description of affected persons and their assets. More specifically, the census determines the household characteristics of affected persons, and the asset survey serves as a legal description of affected immoveable assets held by affected households and communities. Census and asset surveys will serve as the basis for defining who and what is eligible for compensation and who and what is not. 23. If not completed as part of the Social Impact Assessment (SIA) and in particular where displacement impacts the majority of an affected community, a livelihood survey of a statistically significant sample of affected households will be required to assess the local economy, how households sustain their livelihoods and the significance of displacement on these livelihoods. 24. Census, asset and livelihood surveys are to be planned and implemented in close collaboration with those affected. Collected data will serve as the baseline and bench mark to monitor the long-term success of the resettlement process in restoring and improving affected persons’s livelihoods and quality of life. 25. Data collected should be stored in a database and, where feasible, in a geographic information system. The database should enable baseline data entry, cleaning, verification / validation, and analysis. Resettlement Management Plans are required to identify the database. 26. The Proponent will work closely with the relevant negotiations forum to have stakeholders sign off on census and asset survey results. 27. The proponent is encouraged to augment socioeconomic information with genealogical studies or social mapping to identify claims to customary land ownership, kinship ties and (matrilineal / patrilineal) descendants. 28. Eligibility for compensation is to be determined by the census survey, the day of which is to be considered the cut-off date.
3. Baseline and Data Management 21. The collection of extensive primary and secondary data will underpin the resettlement process and form part of a Resettlement Management Plan. The proponent will utilise any socio-economic surveys and baseline information collected during the Environmental Impact Assessment (EIA) process as required under the PNG Environmental Act 2000. 20
4. Eligibility and Entitlements 29. The proponent will prepare and consult on eligibility and entitlement policies to replace or mitigate the impacts of project-induced physical or economic displacement. Eligibility and entitlement policies will be
Draft Papua New Guinea Involuntary Resettlement Policy
included in an appropriate Resettlement Management Plan.
the land take to a specific location or a specific distance;
30. Eligibility and entitlement policies are to be developed by the proponent using the results of surveys in conjunction with local stakeholders, their representatives (e.g. the negotiations forum), and technical specialists. 31. The proponent shall consider persons, households or communities as eligible for compensation if they have a legitimate interest in immoveable assets located in the land-take area prior to the cut-off date. Practically, the date of the Asset Survey or Census Survey should serve as the effective cut-off date as agreed within the negotiation forum. 32. Entitlement policies define the specific type of compensation for displacement impacts to be made available to those who are eligible. 33. Compensation will be described in an Entitlement Framework (see Appendix D for an example) that presents agreed compensation by asset category, a replacement asset or rate for each type of asset loss (covering the full range of assets types) and other assistance measures. Basic generic asset types include, but are not limited to the following: a)
Lands: residential land, commercial / institution land, village / non-productive communal land, agricultural land, grazing lands, fishing sites, resource (harvesting) land, artisanal mining sites;
b)
Buildings: residential structures, commercial structures, other non-residential structures (fences, latrines, sheds, animal pens etc.), community facilities, infrastructure;
c)
Planted assets: crops, gardens, trees , medicinal plants;
d)
Access: access routes and locational advantages;
e)
Business income; and
f)
Cultural heritage: sacred sites, ancestral land, graves.
34. Other compensation entitlements to be considered by the Project include: a)
Eligibility for participation in a livelihoods restoration and community development program;
b)
Potential eligibility for participation in vulnerable assistance program; and
c)
Other rights and allowances, including:
mobilization and re-establishment allowances to cover some of the costs associated with mobilization (e.g., packing, salvaging, etc.) and establishment (e.g., unpacking, building, clearing, etc.); transportation allowance to move belongings and moveable assets from
right of salvage to provide opportunity to salvage immoveable assets, prior to destruction, to the extent practical; and
transitional support, such as food supplements, emergency health care and psychological support.
35. Assets must be valued by the proponent at replacement cost with community consultation on unit rates. Unit rates and valuation will vary according to geography and socio-economic context, requiring local market surveys for replacement costs of materials and market rates for crops. Any rates established by the Valuer General should be used as a starting rate to be verified by local market surveys. In addition: a)
Structures must be valued not only on the basis of their square footage, but also on the basis of the number of rooms within a given structure, and on the basis of construction materials; and
b)
Annual plants may be valued on the basis of units but perennial plants must be valued on the basis of their maturity.
36. Where feasible, the proponent will estimate compensation at higher than replacement rates to the extent that quantitative displacement impacts may not be fully known and the effectiveness of mitigation measures is not guaranteed and to account for a margin of safety in compensation measures. This will help to ensure that the minimum requirement of no negative impact on livelihoods will be met. 37. With the exception of cash payments for crops, trees and non-residential buildings, whenever feasible, compensation should be in-kind. In-kind replacement of land presents challenges due to geography and tribal affiliation, which requires forethought and consideration within the feasibility phase of mine development. Both rural and residential functions of are to be considered together when selecting and securing replacement land and the proponent must demonstrate the following within Resettlement Management Plans: a)
definition of search parameters;
b)
identification of a long-list of alternative sites;
c)
results of consultation with host communities;
d)
evaluation of sites; and
e)
selection of one or more preferred sites.
Replacement lands should be provided with security of tenure to those eligible for land for land compensation.
21
38. Notwithstanding policy 37, compensation in-cash is also acceptable where financial training is provided to recipients and: a)
a. displacement impacts are limited to minimal economic displacement – i.e. temporary economic displacement (e.g, exploration) or the displacement of a small portion of an affected household’s livelihoods sources (e.g, partial take of land); or
b)
an affected household wishes to relocate away from a project entirely - people (and particularly vulnerable people) have the right to relocate to somewhere they may have stronger social structures; and where
c)
compensation is paid into low-risk financial instruments, trusts or securities that release funds over a longer time period.
39. The proponent shall consider compensation for communal or commonly held assets that seeks to offset the loss of resources by relocating the resource, enhancing the productivity of remaining resources or providing access to alternative resources. 40. The proponent will work with the relevant negotiations forum and government agencies to manage the process of formal contractual agreements with affected persons and the disbursement of compensations. 41. The proponent will ensure compensation for individual assets is paid to individual owners through individual agreements. Compensation for collective assets must be shared among collective owners as documented in a Resettlement Management Plan. Compensation for community assets may be disbursed to community leaders, but the compensation and the transfer process must be agreed to by the relevant negotiations forum and disclosed to the public in the Resettlement Management Plan. 42. Compensation policies shall address the closure process and determine whether it will be possible for land used for a given project to be returned to affected communities post closure. However, the possibility that land may be returned post-closure (i.e. long term) will not constitute a substitute for asset replacement in the short or medium term. 43. Where in-cash compensation is provided to a household, it must be equally accessible to both the household head and their spouse(s). Where in-cash compensation will constitute a relatively large payment, there is a preference for staggered payments. 44. Where compensation processes span a year or more, entitlements must be reassessed by the proponent on an annual basis to ensure that they continue to reflect the replacement cost of the assets they are 22
meant to compensate, accounting for inflation and other market fluctuations in a Project Area. 45. Where feasible, assets will be compensated for by the proponent before they are acquired. Where residences are being replaced in-kind, households will not be expected to move out of their houses of origin before new houses are available or in the event transitional or temporary housing is made available.
5. Livelihoods Planning 46. The proponent will engage with affected communities in the design and selection of assistance measures outlined within Livelihood Restoration Programs (LRP) to restore the quality of life of households displaced by a project to pre-project conditions. Livelihood assistance measures must be sustainable in the long term. Where the proponent commits to providing services, it must also demonstrate how the services will continue to be provided following project closure. 47. LRPs are to be continued and adapted until restoration can be demonstrated. A Resettlement Management Plan will contain details of LRP’s and expected timeline of implementation. When designing LRP’s, the proponent will consider the following: a)
LRPs must restore or supplement for the full range of a given household’s livelihood strategies, not simply the income generation activities of the primary breadwinner(s) ensuring that women’s livelihood activities are restored alongside the activities more typically engaged in by men;
b)
LRPs, particularly when related to agricultural and resource based livelihoods, will be developed in conjunction with local specialists and technicians; and
c)
LRP should be tied into and leverage the opportunities created by other project activities, including for example:
opportunities created by construction of resettlement sites and replacement housing;
opportunities created by broader community development programming (a more open-ended program of interventions that contribute to the socio-economic development of all stakeholder communities, not just those households displaced by the project); and
local employment and local procurement opportunities created the project.
48. LRPs will be planned according to the following hierarchy of preference:
Draft Papua New Guinea Involuntary Resettlement Policy
a)
restoration of existing livelihoods:
b)
intensification of existing livelihoods:
c)
to ensure affected persons can continue doing what they know best and what is known to work in the local situation. for land-based livelihoods, in the event that there is insufficient available replacement land of at least equal quality, consider options to bring about a permanent, sustainable intensification of land use, so that a smaller area of land can be made to produce as much or more than the original land base, without requiring additional labour or other costs on an on-going basis; and for non-land based livelihoods, consider sustainable intensification where interventions are identified for which there are successful precedents under very similar conditions having the fewest identifiable risk factors and where consultation and experimentation through pilot programmes is undertaken to improve the chances of success.
introduction of alternative livelihoods:
in terms of livelihood replacement, the substitution of a new type of livelihood (such as trade) for an existing one (such as farming) should only be considered when there is no feasible way of restoring the existing means of livelihood as developing new livelihoods carries much more risk of failure than restoring existing livelihoods, or intensifying existing livelihoods.
49. Livelihood restoration is individual and LRPs will be planned to take account of each individual situation, and not aggregate measures of economic benefits. Individuals within an affected household, for example women and men, will be considered to have equal entitlement to any livelihood restoration measures. The proponent should work with affected communities on a household case basis to define optimal combination of LRPs. 50. The proponent will ensure that LRPs that focus on production or other economic activities be accompanied by capacity building programming, such as training in improved agricultural techniques or financial literacy, to ensure they have the greatest effect possible and are ultimately successful. 51. In seeking to restore and improve household’s quality of life, the proponent must offer LRP options to households that are sustainable in the long term and not dependent on mine subsidies.
52. As necessary, the proponent will develop other mitigation programming to supplement livelihood restoration programming. This programming will serve to protect vulnerable groups and people (see Section 12) as well as to raise the quality of life for people living in the vicinity of the project or resettlement site in ways not necessarily related to direct project impacts. This programming could include, for example, capacity building at the level of local government.
6. Resettlement Site and Physical Planning 53. The proponent will work with communities and government to identify potential replacement lands (policy 37), including resettlement sites, that are informed by an understanding of how both the project and affected (relocated and host) communities will evolve over time. 54. The proponent and government will ensure resettlement sites are not selected where additional project infrastructure may be built, or expansion may take place. 55. The proponent will ensure that the principles, approach and engagement of resettlement site selection and design are documented in the RAP. The proponent will work with the negotiations forum towards reaching agreement on: a)
size, arrangement and location of plots and access routes;
b)
design and components of a Physical Development Plan;
c)
type and technology for on-plot infrastructure;
d)
distribution of land use and location of community facilities; and
e)
location and level of community infrastructure systems including but not limited to water, sanitation, electrical, roads, stormwater and telecommunications.
56. The proponent will ensure Physical Development Plans provide for flexibility in future population growth, including lands appropriate for future formal and informal development of mixed income groups, while meeting national physical planning requirements. 57. The proponent shall ensure that the principles, approach and engagement of in-kind replacement of residential houses are documented in the RAP. The proponent will work with the negotiations forum towards reaching agreement on replacement housing design and quality. The proponent shall ensure housing quality, accessibility, safety and habitability is an improvement on impacted housing.
23
58. Proponents shall coordinate with Department of Lands and MRA on appropriate designs of modular and moveable bush houses suitable for use remote areas at sites with limited access and at risk of damage due to tribal conflict. Assessment of fire-resistant housing should be completed as part of the design process. 59. Replacement housing should be designed to allow for logical future expansion of houses as residents means approve or as household size increases. MRA will coordinate with Department of Lands to ensure building codes reflect requirements for rural-based resettlement housing. 60. Where in-cash compensation for replacement housing is warranted either by policy 39 or in instances where households can demonstrate right of house to alternative housing, compensation rates shall be determined based on replacement costs of materials and any applicable transitional allowances as identified in policy 34. 61. Where relevant or feasible, household’s replacement land must be accessible from their replacement homes to ensure livelihood considerations and locational considerations are critical components of resettlement site selection. 62. In addition to land tenure security, the proponent, MRA, Department of Lands, District Administration and representatives of the negotiations forum will ensure any structures provided as compensation are registered / titled to the original owners of the assets the structures are replacing.
activities and incremental growth of the household over time; e)
after the warranty period, individual households will be responsible for upkeep and maintenance of owned structures. Materials for construction should be selected based on local availability, ease and cost of replacement or addition;
f)
residential structures should be oriented to encourage through ventilation, sun or shade as required, and solar orientation to explore the use of renewable energy sources. Ensure ongoing food security through provision of on-plot gardening and vegetable production in resettlement sites; and
g)
structures will be evaluated for compliance with the negotiated standards prior to hand-over.
64. Infrastructure provided as compensation, including roads, transit, water and sanitation, stormwater, electricity and telecommunication networks and facilities must be sustainable in the long term. Minimum protections related to guaranteeing that infrastructure provided as compensation is suitable and sustainable should include the following: a)
the proponent and the MRA will coordinate with other relevant government bodies, such as the Department of Transport and Works, to ensure the proponent designs infrastructure and extends services that meet the laws and standards of the GoPNG;
b)
where the construction of infrastructure is a component of compensation, the Resettlement Management Plan will explicitly document how government or other organisations will ultimately become responsible for service provision, providing for continued servicing follow project closure or sale;
c)
infrastructure should be planned and designed according to the full life-cycle cost and prior to handover from the proponent to government or other organisations, servicing agreements shall be prepared based on sufficient warranty periods and understanding of remaining capital costs, repair and replacement costs and operational costs;
d)
infrastructure should be planned and developed in a manner which allows for incremental capacity increases to match population growth and demand increases and for incremental improvements to the standard of services as the municipal tax base increases;
e)
infrastructure should be planned and developed in a manner which allows for future expansion of networks to indirectly affected communities; and
f)
infrastructure should be constructed in a manner that can be locally maintained and with
63. Any residential, community, commercial or any other structures provided as compensation must be built for long term use. At a minimum, protections detailed in the Resettlement Management Plan related to structures should include the following: a)
structure design and residential structure designs in particular, should be flexible enough to accommodate the needs of different types and sizes of households - affected households should have options related to house type, plot size and servicing;
b)
standards for construction materials and quality should be developed prior to construction, in accordance with national law, and of sufficient quality to ensure houses will remain habitable over the long term;
c)
d)
24
constructed structures and other durable infrastructure assets will be transferred with a warranty period, so that building errors or other problems that may arise can be fixed by the proponent; the location and coverage of a house on a plot, should be considered in relation to the size of the plot and to other adjacent buildings to ensure space for infrastructure, household
Draft Papua New Guinea Involuntary Resettlement Policy
components that are readily available within the region.
7. Land Management and Tenure Security 65. The proponent will include a legal and institutional framework within Resettlement Management Plans that will ensure land acquisition and land access is officially conducted and documented through the use of formal registration or guarantees that meet the requirements of national law. 66. The proponent will demonstrate that the land acquisition process will be managed in a way that ensures long term tenure security for resettled households. This means that the proponent must work closely with government and local communities (both those being displaced and those with claims to land at any resettlement sites), to prevent conflicts related to land from emerging. 67. The MRA and the Department of Lands and Physical Planning will coordinate with the proponent and local communities to develop a viable land tenure registration system that provides security of tenure – or right of access and use – to the full range of affected persons, from formal landowners and land owner associations to informal or customary residents and users of lands. In instances where ILGs have been formed, MRA will build awareness in the community for equal representation of women within the ILG structure. 68. Resettlement sites will be located outside of a given development licence area so that households are protected against repeated relocations within a mine license area. Plots and structures built as part of compensation will be registered with government under the eligible person’s name. 69. Where the resettlement process will constitute impacts on host communities, engagement with these communities will be carefully conducted, in accordance with Section 7 of this IRP. This will allow the full range of impacts (and related mitigation) is understood by the host community. 70. The proponent will develop an up-to-date database with land survey information, census information, cadastral surveys and a stakeholder map of land owning individuals and groups. 71. Where communities own land under customary tenure, genealogical studies and social mapping will be undertaken by the proponent in full consultation with communities to identify those families with claim to the land. 72. Where affected households do not receive freehold title of land they acquire or access as part of their compensation, a proponent will be responsible to
demonstrate alternative means of tenure security through appropriate agreements. A proponent must collaborate with the MRA, affected communities and other stakeholders to ensure that land tenure guarantees remain in place in the long term. Various forms of community-approved tenure or access agreements with appropriate counter signing by local District Administrators would serve as alternative tenure guarantees.
8. Influx Management 73. The proponent will consider measures to appropriately manage social risk and impacts due to project induced in-migration (PIIM), including inflation, increased scarcity of land and other natural resources, and increased pressure on infrastructure such as housing stock, schools and clinics. Resettlement site designs and replacement housing should be designed appropriately to accommodate rapid growth associated with mining projects. 74. In addition to local employment measures, the proponent will ensure social surveys and social mapping is conducted as early in the process as possible to capture identification of original inhabitants. Follow up surveys will provide the proponent with an estimate of subsequent in-migrants to project sites. 75. The proponent and MRA will work together to on education and awareness programs with affected communities to manage speculation on compensation benefits where households that anticipate project benefits without signed agreements, receive credit and other loans that may result in financial risk to the household. The proponent and MRA will work with local community leaders to help in dissuading households in engaging in speculative activity.
9. Speculation Management 76. Within Resettlement Management Plans, the proponent will clearly and completely define land-take and ensure future planned land needs prevent multiple resettlements and cumulative impacts on affected households through incremental and repeated expansions of the land-take over the life of a project. 77. Through the active participation of local government representatives in community engagement related to the cut-off date, the MRA shall ensure that the rights of communities and the proponent are clearly communicated. 78. The proponent will declare the cut-off date as established in Policy 28, which establishes a moratorium that will apply to all lands, crops, 25
structures, and other assets within the area of land to be acquired.
87. Mitigation and community development programming should be designed to progress as follows:
79. A cut-off date represents a significant impact on those affected, as it deters future investment and livelihood activities. For this reason, imposition of a cut-off date should be delayed until the proponent has a reasonable certainty regarding its ability to proceed with the resettlement in a timely manner. 80. Aerial photographs of the land-take area should be taken on or shortly after the cut-off date by the proponent. These photographs will serve as a record of buildings and major land uses at the time of moratorium, and will be used in the assessment of applications and grievances regarding building, planting and compensation claims. 81. The proponent will clearly define and communicate an approval process for construction or land upgrading after the cut-off date. This process will need to be detailed, accessible, fair and transparent, and validated by the relevant negotiations forum. 82. The proponent will develop brief internal guidelines for the identification of speculative activities by field staff and reporting of these activities to the project and the negotiations forum. 83. Speculation management measures will be reassessed throughout the resettlement planning and implementation process for effectiveness and adjusted as necessary.
10. Linkages to Long-term Socioeconomic Community Development 84. The proponent will develop mitigation strategies for a given resettlement process that tie into and leverage broader community development activities and opportunities. This will include opportunities to support and enhance activities currently being undertaken or planned by local government or a third party such as a Non-Governmental Organization (NGO) or a religious group. 85. The proponent will link mitigation programs to a broader community or regional development plan, encompassing all project stakeholders (i.e. not just those being displaced) and in coordination with District, Provincial and National government bodies to ensure that mitigation planning is linked with umbrella national or regional development strategies. 86. In instances of physical resettlement requiring the construction of new communities or the expansion of existing communities, the proponent will ensure that site planning is linked to national policy on the establishment of Economic Corridors and District Centres.
26
a)
preliminary programming that aims to strengthen existing livelihoods by ensuring access to livelihood inputs (in agricultural contexts, land is the most important input);
b)
mid-term programming that aims to enhance local capacity through skills training and extension services; and
c)
long-term programming that aims to broaden the range of local economic opportunities, such as through improved access to credit and larger scale commercial opportunities.
88. The specific objectives and modes of implementation of community development interventions will be subject to negotiation with stakeholders, including communities, governments, and other actors involved in national development.
11.
Vulnerable People and Groups
89. The proponent shall develop measures to identify and monitor specific individuals and households who, because of their particular circumstances, may be at risk of becoming vulnerable due to project-related displacement. 90. The proponent shall establish a formal register of potentially vulnerable people and dedicate project staff to follow up with those identified. Where it is demonstrated that this group (or a subset of this group) are indeed vulnerable, assistance measure will be developed to address this. Vulnerable persons or groups may include: a)
ethnic minority people and households;
b)
women and women-headed households;
c)
households with a high number of dependents;
d)
elderly persons and households;
e)
single parent or single person households;
f)
persons with disabilities and/or of ill health;
g)
persons and households with no or little cash income;
h)
persons who will have difficulty accessing RAP support programs; and
i)
tenants or renters who have no ownership rights to immoveable assets.
91. Particular attention will be given to ensuring that existing support systems are maintained and not disrupted through the displacement and/or resettlement process to more effectively utilise existing family and social networks that provide support to vulnerable persons.
Draft Papua New Guinea Involuntary Resettlement Policy
92. The proponent shall ensure details of the vulnerables program will be documented in the Resettlement Management Plan and continue with implementation of the vulnerables assistance program until such people and households have been successfully reestablished. 93. Subject to negotiations with the affected communities, some of the community development activities will focus on improving the situation of pre-existing vulnerable persons, even if their situation is not attributable to project impacts. This will serve to increase the level of confidence that there will be no deterioration in the situation of vulnerable persons. A proponent will engage with the Department of Community Development and Religion in developing vulnerable
12.
Grievance Mechanisms
94. The proponent is responsible for developing a grievance management process to accommodate grievances resulting from land acquisition process. The specific grievance mechanism will enable a proponent to receive and address specific concerns about the land acquisition process that are raised by those affected, as well as other resettlement stakeholders, in a transparent, constructive, timely, confidential (if desired), culturally appropriate and accessible manner. A conceptual grievance mechanism is depicted in Figure 2 and additional detail is provided in Appendix E. The proponent will
c)
provide access to available judicial or alternative dispute resolution;
d)
redress is completed in a timely and efficient manner with full documentation of issue and outcome;
e)
access is free to dispute resolution; and
f)
accommodations for members of vulnerable groups.
95. The proponent will document and track grievances in the resettlement database and designate a grievance management officer to manage the Grievance Management System (GMS). The officer will be responsible for reporting on grievance tracking and resolution. 96. The MRA will coordinate with the judicial system on outstanding issues related to grievances or claims of human rights abuses resulting from displacement and resettlement activities. 97. In the event of limited access to courts, the MRA will coordinate with the proponent and the judicial system to ensure that legal claims resulting from resettlement are heard.
Figure 2: Grievance Mechanism
also ensure, in no particular order: a)
proper management and staffing to manage cases and ensure availability of grievance officers to the public;
b)
early identification of issue areas; 27
13.
Roles and Responsibilities
98. MRA will assist the proponent in integrating resettlement planning into broader social and project planning. This includes integrating staff and personnel on the resettlement planning team into the overall project team, which will serve to minimize displacement and generate realistic work schedules and resettlement budgets. 99. The exact composition of a resettlement management team varies between projects but will always include a designated Land Acquisition Manager. 100. The proponent will plan and budget for the hiring of technical specialists (on a temporary or ongoing basis) as different needs arise over the course of a resettlement process. Technical expertise is often required in the following fields: a)
land and planning laws;
b)
stakeholder engagement;
c)
household negotiations;
d)
grievance management;
e)
geographic information management;
f)
livelihood and community development; and
g)
physical planning, design and construction management.
101. To ensure that a given project is leveraged as a vehicle for local and regional development, the proponent will engage local government, as required, to build local capacity and facilitate knowledge transfer. 102. With respect to project planning and implementation of Resettlement Management Plans, MRA should serve in a coordinating capacity with respect to the following:
28
a)
define administrative responsibilities between local, regional and national levels of government;
b)
provide outreach and engagement services to affected communities in particular around issues related to customary land ownership, design and provision of community infrastructure, selection of replacement land, land and title registration, and extension of in-kind support services to affected communities;
c)
provide oversight related to the provision of health, education, water and sewage services and other locally-delivered infrastructure including the devolution of community development plans according to an agreed timeline and phasing plan; and
d)
when necessary, assistance with the allocation of compensation-related disbursements and rental payments into GoPNG accredited financial institutions on behalf of those entitled.
14.
Planning and Budgeting
103. The proponent will provide sufficient time dedicated to the planning, preparation, negotiation and implementation of a Resettlement Management Plans in a Resettlement Work Plan. 104. The total cost of resettlement, including the cost of compensation, relocation, administration and monitoring is an integral part of a project’s cost. Resettlement budgets will include budgeting for contingencies. Contingency costs are usually 10% of the planned resettlement budget. Conceptual resettlement budgets will be prepared within Resettlement Scoping Documents in the feasibility stage and Resettlement Frameworks during the EIA permitting phase when physical displacement is identified as an impact. 105. The Resettlement Management Plan will clearly present expected costs for all aspects of the resettlement process and clearly delineate financing roles and responsibilities to be finalized prior to initiating resettlement. 106. Finances for resettlement consultation, planning and implementation will be provided by the proponent. The proponent is responsible for the timely allocation of funds needed to implement land acquisition and the provision of entitlements. 107. At the discretion of the MRA, a proponent may be required to establish an endowment fund that will provide for project closure (including the reversal of the impacts of land acquisition and other project activities).
15.
Monitoring and Evaluation
108. The proponent will develop a monitoring and evaluation program on the basis of baseline data collected and, where available, in conjunction with the relevant negotiations forum. The program will be documented in the Resettlement Management Plan. 109. The monitoring and evaluation program will based on a number of key performance indicators, which will be linked back to the baseline information collected and other socio-economic datasets. Monitoring will provide timely and concise information indicating whether the land acquisition process is on track to achieve its goals and objectives, whether any unforeseen impacts or risks have emerged, and whether national, international and company standards are being met. 110. Quarterly meetings of the relevant negotiations forum will review the monitoring system and results and will serve as venues for the discussion of potential changes and improvements to the planning or implementation of the resettlement process.
Draft Papua New Guinea Involuntary Resettlement Policy
111. An annual survey of affected households with both quantitative and qualitative performance indicators will be employed to monitor and measure progress on program goals. These project-specific annual household surveys will be complimented by a complete baseline survey conducted every 5 years in order to measure social conditions in the project area as compared to previous surveys. 112. Monitoring and evaluation will continue until household livelihoods have been successfully reestablished and longer-term community development processes have taken root. Progress reports to the designated company project manager will allow for changes in program design to address emerging issues. 113. Compensation policy will be assessed on an annual basis to ensure that they expected disbursements have taken place, programs enacted, and that projected outcomes are being achieved. The Resettlement Management Plan will include provisions for monitoring of mitigation strategies. 114. Expenditures of budgets contained within Resettlement Management Plans will be reviewed semi-annually by MRA. 115. An annual external evaluation will also be conducted of the livelihoods restoration or resettlement program. This will provide focused, independent assessment of the overall success of the land acquisition at regular intervals. It will provide recommendations designed to correct identified problems and/or enhance the achievement of resettlement goals and objectives. A completion audit will be completed by an independent evaluator once resettlement and hand-over is complete followed by annual external evaluations for a period of five years. 116. MRA will conduct annual reviews of Resettlement Management Plans to ensure Proponents are meeting commitments established in the Plans and within the Project Memorandum of Agreement (MOA). Where Proponents are not meeting commitments, conditions will be placed on the review and renewal of the MOA. MRA shall identify penalties within the MOA that will take effect in the event a proponent is not meeting commitments established within the Resettlement Management Plan
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Definitions
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Draft Papua New Guinea Involuntary Resettlement Policy
Affected Persons/Household/Community
Direct Influx
Any person, household, or community located within a project’s area of direct or indirect influence, as established within the project’s Environmental Impact Assessment or Social Impact Assessment.
Constituted by the migration of mine employees into an area in order to take up employment with a project; and the in-migration of their associated family members.
Asset Survey
People who suffer physical and/ or economic displacement (see definitions below).
An asset survey collects data on the assets owned by each affected entity (households, businesses, communities, government bodies etc.). Assets (intangible) Assets that cannot easily be measured or valued, these assets can include sacred natural features, and social networks. Assets (tangible) Assets (primarily physical) that can be measured including land, structures, trees, crops, access to water, and improvements on land. Census The census is a survey of 100% of resettlement-affected households. The census serves to identify the total number of affected persons and basic information on their social characteristics including, for example, their education levels, their sources of income, and context specific markers of vulnerability. The census supplements the information provided by the asset survey and helps to determine eligibility for compensation and impact mitigation measures. Compensation Framework Specifies all forms of asset ownership or use rights among the population affected by the project and the project’s strategy for compensating them for the partial or complete loss of those assets. Completion Audit An audit performed to evaluate a project proponent’s performance against commitments in the project RAP, any subsequent commitments made as a result of monitoring activities (e.g. related to emergent impacts), Papuan law, and best practice requirements.
Displaced Persons
Displacement (economic) The loss of income streams or access to livelihood means as a result of project activities such as land acquisition or land use restriction (obstruction of continued access to resources such as land, water, and forest). Notably, where economic displacement is severe, it can trigger the need for physical displacement – i.e. where project activities make a household’s livelihood strategies untenable, despite not directly impacting their residential land and structures, that household may need to move in order to have the opportunity to restore their livelihood streams. Displacement (physical) Loss of shelter and assets resulting from the acquisition of land associated with the development or operation of a project or its associated facilities that requires the affected person(s) to move to another location. Eligibility The criteria for affected parties, establishes rates of compensation for lost assets, and describes levels of assistance for relocation and reconstruction of affected households. Entitlement Framework A framework agreed between the project proponent and other stakeholders (government bodies, affected households and communities etc.) that defines the principles for asset valuation and the bases for: a)
subsequent compensation measures and rates; and
b)
the determination of eligibility for compensation under the terms of the RAP.
Cut-off Date The date of completion of the census and assets survey of persons affected by the project. Persons occupying the project area after the cut-off date are not eligible for compensation and/or resettlement assistance. Similarly, fixed assets (such as built structures, crops, fruit trees, and wood- lots) established after the date of completion of the asset survey, or an alternative mutually agreed on date, will not be compensated. Cut-off dates can be voluntary or mandatory (i.e., legally enforceable). Regardless, the importance and objectives of the cut-off date need to be publicly disclosed, well-disseminated throughout the project area, and agreed to by those affected.
Genealogical Study A study of affected persons family lineage to determine compensation. Host Community People living in or near an area to which those physically displaced by a project will be resettled, and who as a result, are expected to be affected by the resettlement and related project activities. Households Persons who reside in a residential unit where economic production, consumption, inheritance, child rearing and shelter are carried out.
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In-cash Compensation
Key Informants
Cash compensation given:
People with specific sector and/or geographic expertise. Although there are many exceptions, many informants are people employed in delivery of government or private sector services, whose jobs may include data collection, planning and/or monitoring in their areas of expertise.
a)
in exchange for the project’s acquisition of another stakeholder’s land or other assets; or
b)
as part of mitigation for impacts resulting from project activities.
In-kind Compensation The planning, design and construction replacement assets given: a)
in exchange for the project’s acquisition of another stakeholder’s land or other assets; or
b)
given as part of mitigation for impacts resulting from project activities.
Indirect Influx Indirect influx is constituted by the migration of contractors and other service providers into a project area in order to take up employment with a project. Indirect influx also includes and the in-migration of their associated family members. Induced Influx The largest driver of project induced in-migration and constituted by the in-migration of people not employed by a project, but rather of people hopeful of: a)
employment with the project;
b)
meeting the increased demand for goods and services generally seen in project areas (where direct and indirect migrants and local employees will be spending their disposable income); or
c)
benefitting from project development in other ways, such as through access to improved infrastructure and social services.
Land Acquisition Transactions resulting in a project securing access or direct control of lands within its Mine Lease, for the purposes of exploration or construction, operation or general development of a mine. Land Take Land acquired by a project for the purposes of developing a mine or associated environmental or safety buffer areas. Legitimate Interest The tangible or intangible demonstration of ownership or use of an asset by an affected person. Livelihood The full range of activities that people and households engage in to sustain themselves. Different livelihood strategies include, for example, farming, fishing, the harvesting of other natural resources for consumption or sale, wage work, trade, and the bartering of goods or services. Livelihood Impacts General term for a change in livelihoods induced by a site (project or operation) and its activities. Impacts can be negative or positive, but positive impacts are usually referred to as ‘benefits’. Livelihood Restoration Programs Activities developed to restore livelihoods and protect vulnerable people and groups. Livelihood Survey
Involuntary Displacement Displacement is considered involuntary when affected individuals or communities do not have the right to refuse land acquisition that causes displacement. This occurs in cases of: a)
lawful expropriation or restrictions on land use based on eminent domain; and
b)
negotiated settlements in which the buyer can resort to expropriation or impose legal restrictions on land use if negotiations with the seller fail.
Involuntary displacement also occurs where a seller’s consent is obtained without their understanding the full ramifications of what it is they are agreeing to. Immovable Assets Assets that are unable to be physically moved during a resettlement process. 32
A survey conducted to determine the livelihood of an affected person or household. Market Rates Ensure appropriate market valuation required to allow Affected Communities and persons to replace lost assets with assets of similar value. Mitigation A measure implemented to avoid, minimize or compensate for a potential negative impact Negotiations Forums A forum for compensation and resettlement negotiations made up of representatives of local government, technical specialists, local land owner associations, and elected local community members including women and representatives of other marginalized groups.
Draft Papua New Guinea Involuntary Resettlement Policy
Participant observation
Resettlement Framework
The observations made by project staff and consultants who spend time in communities, and are able in the course of their activities to interact with community members. Participant observation is a research method and involves more than just looking at what is going on. It also includes listening and asking questions, and often participating in activities of a household or other group of people to get a first-hand experience of what constitutes daily life. That experience, described in notes, is social data.
A precursor document prepared in the feasibility or planning phases of a project (or sub-project) that broadly identifies objectives, principles, policies, procedures, organizational arrangements and the estimated timeframe and cost for developing a RAP and implementing a resettlement.
Project affected person/community
Resettlement Scoping Study
In the context of a resettlement, any person who, as a result of project activities (and land acquisition activities in particular), permanently or temporarily loses rights or access to land, structures, crops and other planted assets, or any other fixed or moveable asset, either in full or in part.
A study undertaken to scope the degree of resettlement and social impacts of a given projects during the feasibility and exploration phase which may include a compensation framework in the event of economic displacement.
Project induced in-migration (PIIM)
Protection from forced eviction and legal documentation of rights to land.
The movement of people into an area in anticipation of, or in response to, economic opportunities associated with the development and/or operation of a project. Project Proponent Company, government body, or other institution seeking to implement a resettlement process for the purpose of project development. Replacement Asset A new asset received by an affected person in lieu of a lost asset. Replacement Cost The rate of compensation for lost assets must be calculated at full replacement cost, that is, the market value of the assets plus transaction costs. Replacement Land A new parcel of land received by an affected person in lieu of a lost land. Replacement lands often have to serve two different but related functions: 1)residential function, as those physically displaced are resettled, which requires equivalent access to employment options, markets, infrastructure, and facilities, ii) rural function, as the livelihoods of those economically displaced are reestablished, which requires equivalent potential productivity. Resettlement Action Plan (RAP) A comprehensive plan that addresses the physical and economic displacement induced by project activities. A RAP specifies the policies the project proponent will adhere to, the procedures the proponent will follow and the actions the proponent will take to mitigate negative project impacts, compensate for lost assets and access rights, restore livelihoods, and provide development benefits to persons and communities displaced or otherwise affect by the project.
Resettlement Management Plan A Resettlement Scoping Study, Resettlement Framework, Resettlement Action Plan or Compensation Framework.
Security of Tenure
Scope of Displacement The degree in which persons will be displaced; economically, physically, temporarily vs. permanently, and completely vs. partially. Social License to Operate This is a broad term that refers to a given project enjoying ongoing acceptance or even support from stakeholders, and from local communities in particular. Once gained, a project's social license must be maintained through continued efforts by the project to build relationships with local stakeholders and respond to emergent concerns. Social Impacts General term for a social change induced by a site (project or operation) and its activities. Impacts can be negative or positive, but positive impacts are usually referred to as ‘benefits’. Social Mapping An exercise that identifies stakeholders including local people, all levels of government and other third parties with the ability to influence a project or experience potential project impacts. Speculation The purposeful construction of structures or planting of crops or trees within the designated land take delineated for project use, with the sole aim of claiming compensation. Speculation Management A critical component of maintaining a good relationship between project stakeholders, and often critical in order to finalize a resettlement process. Where speculative activities are unchecked, resettlement processes become unfair, less transparent than required, and are more likely to cause social conflict in project-affected communities. 33
And where speculative structures and crops are in fact compensated for at the rates established for legitimate assets, speculation can cause the cost of a resettlement to multiply. Speculation management measures complement an overall strategy of broad and transparent communication and consultation with communities about the resettlement process. Stakeholders Persons or groups that are directly or indirectly affected by a project, as well as those that may have interests in a project and/or the ability to positively or negatively influence its outcome. Stakeholders include locally affected communities and individuals, and their formal and informal representatives, government, politicians, religious leaders, civic organisations, and other groups with special interests, the academic community, employees, their families and employee representatives, other businesses, shareholders and joint venture partners. Voluntary Land Transactions A land transaction is voluntary when it is a market transaction in which the seller is not obliged to sell and the buyer cannot resort to expropriation or other compulsory procedures if negotiations fail. The following additional condition must also be met - i) land markets or other opportunities for the productive investment must exist; ii) transactions must take place with the seller’s informed consent; and iii) the seller must be paid fair compensation based on prevailing market values. Notably, where large power gaps exist between buyers and sellers, and particularly if a seller belongs to a vulnerable group, the buyer must be especially diligent to prove that a transaction has been voluntary and based on informed consent. Vulnerable Groups and Persons Persons who by virtue of gender, ethnicity, age, physical or mental disability, economic disadvantage, or social status may be more adversely affected by resettlement than others and/ or who may be limited in their ability to take advantage of resettlement assistance or other project benefits.
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Draft Papua New Guinea Involuntary Resettlement Policy
Appendices
35
A. Summary of National Laws and International Standards Abbreviations: EA = Environment Act; LA = Land Act; LGIA = Land Groups Incorporation Act; LRA = Land Registration Act; NC = National Constitution; O&GA = Oil and Gas Act; OGPGLLG = Organic Law on Provincial Governments and Local-level Governments; ULA = Underlying Law Act.
Issue
International Best Practices (IFC)
PNG Law
Gaps or Conflicts
Avoid/Limit Displacement
Alternative projects designs should be considered to avoid or limit physical or economic displacement
NC National Goal 5(4) calls for ‘traditional villages and communities to remain as viable units of Papua New Guinean society’.
Current guidelines for conduct of EIA/SIA do not make explicit reference to the need for avoidance or limiting of physical or economic displacement.
NC s.53 protects citizens from ‘unjust deprivation of property’ by limiting the justification for compulsory acquisition by the State. Alternative Project designs should be considered in the process of environmental (including social) impact assessment (EA s.51).
Mitigate physical and economic displacement impacts
Development of an operational resettlement action plan or a resettlement action framework.
NC National Goal 2(3) calls for ‘every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country’. Measures to mitigate negative impacts of resettlement should be considered in the process of environmental (including social) impact assessment (EA s.51).
Current guidelines for undertaking an EIA/SIA do not make explicit reference to impacts of resettlement. PNG law has no other mechanism for regulating design of operational resettlement action plans or frameworks.
Development opportunities for affected persons could be covered by benefit- sharing agreements negotiated through development forum (O&GA s.50).
Eligibility & Cut-off Date
Identify persons who will be displaced to determine eligibility for compensation and assistance by a specified cut-off date.
O&GA s.47 requires the project proponent to conduct social mapping and landowner identification studies in any licence area or buffer zone before granting of a project development licence. LA ss.13-14 requires the State to
O&GA does not explain the relationship between a ‘landowner identification study’ and a census. PNG law does not specify cut- off dates for eligibility of landowners to receive compensation or assistance
Consultation
Strict documentation of participatory processes & information disclosure. Ensure all perspectives, including women and vulnerables are considered.
identify all individual owners of land subject to compulsory acquisition for purposes of compensation.
from developers with whom they have a relocation agreement.
NC National Goal 2(9) calls for ‘every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community’. OLPGLLG ss.115-6 requires consultation with landowners in the development of any ‘natural resource’.
PNG law treats resettlement or relocation as ‘compensation’ issues, which are distinguished from the distribution of ‘Project benefits’ negotiated in a ‘development forum’.
O&GA s.48 requires participation of ‘Project area landowners’ in a development forum before granting a Project development licence.
Entitlements & Compensation Process
Compensation for economic and physical displacement at full replacement costs.
General principles of compensation for damage or destruction of physical and economic assets are set out in NC s.53, LA s.23, O&GA s.118, and EA s.87 are broad enough to encompass economic, as well as physical, displacement. LA s.12-22 sets out a procedure for the negotiation of compensation agreements in cases where the State exercises its power of compulsory acquisition (IFC Type I transactions).
Livelihoods & Assistance
Improve or at least restore standards of living and livelihood. Inputs and transitional support (training, credit services etc.) until restoration demonstrated. Monitoring of livelihood restoration. Particular attention should be given to vulnerables.
General principles of compensation for damage or destruction of physical and economic assets are set out in NC s.53, LA s.23, O&GA s.118, and EA s.87 are broad enough to encompass economic, as well as physical, displacement. LA s.12-22 sets out a procedure for the negotiation of compensation agreements in cases where the State exercises its power of compulsory acquisition (IFC Type I
Laws and guidelines do not prescribe measures of ‘full replacement cost’ or ‘standard of living’. A s.12-22 relates primarily to physical, not economic, displacement. PNG law does not establish any distinctive procedures for the negotiation of agreements to compensate people for economic (rather than physical) displacement.
Laws and guidelines do not prescribe measures of ‘full replacement cost’ or ‘standard of living’. [Same gap as Item 2 above.] Current (2008) version of the ValuerGeneral’s ‘Standard Compensation Rates’ makes no provision for the value of economic assets aside from cash crops and fish ponds. PNG laws and regulations provide no guidance on design of 37
Grievances
Impartially receive and address grievances through a culturally appropriate, accessible, prompt and transparent mechanism.
transactions).
livelihood support packages. Previous agreements constitute the only precedents.
O&GA s.118 provides for a ‘warden’ (public servant) to resolve disputes about implementation of compensation agreements between landowners and developers, with right of appeal by either party to the National Court.
PNG law does not require developers to establish their own grievance mechanism for this purpose.
Source: Internal & http://www.pnglng.com/media/pdfs/committment/Appendix_26_PGGP-EH-SPENV-000018030_Resettlement_Policy_Framework_Rev3__FINAL.pdf
B. Overview of Relevant International Standards International Finance Corporation (IFC) Performance Standards on Social and Environmental Sustainability Private companies must commit to meeting the IFC Performance Standards (PS) on Social and Environmental Sustainability. These standards, together with the accompanying Guidance Notes, have become the most widely accepted framework in the world for managing the social and environmental impacts and risks associated with private sector development projects in emerging markets. The PS most relevant to this Framework are briefly described below. Performance Standard 1: Social and Environmental Assessment and Management System PS1 describes how environmental and social issues are to be handled in project development and serves as the core around which the other standards are framed. This standard requires that nearby communities be appropriately engaged on issues that could potentially affect them. Key requirements to this end include: a)
conducting an informed consultation and participation process with affected communities;
b)
working in an inclusive and culturally appropriate manner;
c)
addressing the needs of disadvantaged or vulnerable groups; and,
d)
making available an effective grievance management system.
Performance Standard 5: Land Acquisition and Involuntary Resettlement PS5 refers to the management of physical and economic displacement resulting from project-related land acquisition through livelihood restoration and resettlement processes. Objectives are to: a)
avoid or at least minimize involuntary displacement wherever feasible by exploring alternative project designs;
b)
avoid forced evictions;
c)
mitigate impacts from land acquisition, by providing compensation for loss of assets at full replacement cost and ensuring that livelihood restoration and resettlement activities are implemented with appropriate stakeholder engagement;
d)
improve or at least restore the livelihoods and standards of living of displaced persons; and,
e)
improve living conditions among those physically displaced through the provision of adequate housing with security of tenure at resettlement sites.
PS5 introduces the concept of negotiated settlements to avoid forcible removal of people or land use activities, and requires that project proponents “bridge the gap” between IFC requirements and domestic legal requirements. PS5 also provides for proponents to prepare a Livelihood Restoration or Resettlement Framework “where the exact nature or magnitude of land acquisition or restriction on land use related to a project with potential to cause physical and/or economic displacement is unknown due to the stage of project development.”
39
C. Annotated Outline of a Generic Resettlement Action Plan SECTION / SUBSECTION
OBJECTIVES
PREFACE
Provide a brief overview of this document and how it was prepared.
COMMITMENTS
Commit the company and other parties as appropriate to this document and its timely Implementation.
AUTHORSHIP AND ACKNOWLEDGEMENTS
Recognise the effort of those who contributed to the preparation of this document.
TERMINOLOGY
Define key terms used in this document.
SUMMARY
Present a non-technical, plain-language summary of this document.
CHAPTER 1. INTRODUCTION 1.1 Project Description
Present an overview of the Project, its setting and its land take, as well as associated displacement zone(s).
1.2 Approach to Land Acquisition and Resettlement
Outline the overall approach, including key principles.
1.3 Overview of this Document
Define the goals and objectives of this document, and a section by section breakdown.
CHAPTER 2. INSTITUTIONAL AND LEGAL FRAMEWORK 2.1 PNG
Provide an overview of PNG’s institutional and legal framework as it relates to land acquisition and resettlement.
2.2 International Standards
Summarise relevant international standards, for example the IFC's Performance Standards on Social and Environmental Sustainability.
2.3 Proponent Policies
Summarise relevant corporate policies and principles.
2.4 Comparison of National, International and Corporate Policies
Compare the national, international and corporate frameworks and identify gaps along with means of bridging those gaps.
CHAPTER 3. EXISTING CONDITIONS 3.1 Methods
Outline methods used to collect socio-economic baseline data.
SECTION / SUBSECTION
OBJECTIVES
3.2 Project Context
Describe the Project’s socio-economic context.
3.3 Project Area
Provide a description of the Project Area, including demography, settlement patterns and household livelihoods.
3.4 Displacement Zone(s)
Provide a more detailed description of the displacement zone(s), including demography, settlement patterns and household livelihoods.
CHAPTER 4. IMPACTS OF LAND ACQUISITION 4.1 Efforts to Minimize the Scope of Displacement
Summarise any measures taken to reduce the scope of displacement.
4.2 Impacts on People and Households
Describe the impacts on Project Affected People and Households by providing a profile of the people and households that will be displaced by the Project, detailing the extent of displacement, and characterising the resulting impacts.
4.3 Impacts on Public Access, Facilities and Infrastructure
Describe any impacts on public access to and through the Project Area, and on any public facilities and infrastructure.
4.4 Impacts on Cultural Heritage
Describe any impacts on cultural heritage resources in the Project Area.
4.5 Impacts on Communities
Describe the impacts on Project Affected Communities, the ability of host communities to absorb those displaced, as well as related impacts and benefits
CHAPTER 5. STAKEHOLDER ENGAGEMENT 5.1 Goals and Objectives
Describe goals and objectives.
5.2 Stakeholders
Identify resettlement stakeholders: i.e., those individuals, groups and organizations with a legitimate interest in the process.
5.3 Engagement Activities
Provide an overview of all engagement activities, as well as key issues.
5.4 Overall Assessment
Assess success of stakeholder engagement activities in meeting key tests defined by international standards.
CHAPTER 6. COMPENSATION FRAMEWORK 6.1 Goals and Objectives
Describe goals and objectives.
6.2 Legal Basis
Outline the legal basis for the establishment of a compensation framework, including definition of a cut-off date.
6.3 Eligibility
Describe eligibility policies.
6.4 Entitlements
Describe compensation entitlements for eligible impacts, including definition of an overall entitlement matrix.
CHAPTER 7. COMPENSATION RATES 41
SECTION / SUBSECTION
OBJECTIVES
AND REPLACEMENT ASSETS 7.1 Goals and Objectives
Describe goals and objectives.
7.2 Compensation Rates
Describe the methodology used and compensation rates established for eligible impacts to immoveable assets.
7.3 Replacement Assets
Describe the methodology used and replacement assets established for eligible impacts to immoveable assets, including replacement lands, houses, plots, infrastructure and facilities, as well as related operations and maintenance responsibilities.
CHAPTER 8. LIVELIHOODS RESTORATION AND COMMUNITY DEVELOPMENT 8.1 Goals and Objectives
Define goals and objectives.
8.2 Target Groups
Define target groups.
8.3 Programs and Activities
Outline the methodology used and programs established for the target groups defined above, including specific objectives and activities for each.
CHAPTER 9. VULNERABLES ASSISTANCE 9.1 Vulnerability in the Host Country
Provide an overview of vulnerability in the host country and how it is managed by the public and civil sectors.
9.2 Vulnerability in Resettlement
Identify the specific risks related to resettlement that increase vulnerability.
9.3 Vulnerability in the Displacement Zones
Identify vulnerable Project Affected People and Households, as well as their particular needs.
9.4 Assistance Measures for Vulnerable Persons and Groups
Define a range of additional assistance that will be provided to such people and households.
CHAPTER 10. GRIEVANCE MANAGEMENT 10.1 Goals and Objectives
Define goals and objectives.
10.2 Mechanisms
Describe the various mechanisms made available to Project Affected People and Households.
10.3 Summary of Grievances Filed
Provide a summary of the number, nature and status of grievances filed.
CHAPTER 11: MONITORING AND EVALUATION 11.1 Monitoring
Describe monitoring goals, objectives and activities.
SECTION / SUBSECTION
OBJECTIVES
11.2 Evaluation
Describe evaluation goals, objectives and activities.
CHAPTER 12. IMPLEMENTATION
Define the implementation strategy, including approach, strategy, objectives, policies and procedures, work plan, orgchart, roles and responsibilities, schedule and budget.
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D.
Social Assessment Recommendations
Socio-economic surveys are required to establish baseline conditions in affected communities typically in the EA phase of a project. Typically baseline will account for those communities located within a Project Area – including those that will be displaced as well as any potential host communities. It is on the basis of information about baseline conditions that the scope of displacement impacts should be determined in the EA phase. Potential displacement impacts studied within an EA (or subsequent Resettlement Management Plan) should include the following: a)
Demography;
b)
Public health;
c)
Quality and quantity of water supply;
d)
Existing infrastructure;
e)
Economic conditions;
f)
Land and other natural resources used to sustain local livelihoods, irrespective of tenure;
g)
Social services; and
h)
Archaeological, historical, cultural and religious features.
Most social data will be collected by a project proponent’s social department, community relations department, or a third party consultant with experience in social issues. Assessing the potential for social impacts also requires input from other functional department’s within a project, and / or from consultants specialized in other areas (e.g., environment, mine planning). Coordination may be necessary therefore, between different departments and different consultant to ensure that social impact assessment is informed by the following specialists: a)
human health risk assessors, with data on people’s diets and natural resource consumption;
b)
biologists, with data on people’s species use, including hunting, fishing and gathering;
c)
hydrologists and hydro geologists, with data on potable and irrigation water amounts and sources;
d)
logistics managers, with data on pedestrian, animal and vehicle traffic routes and flows;
e)
supply managers, with data on capacity of businesses in affected communities to supply a site;
f)
human resources and training managers, with data on skill availability and obstacles to mining employment for some population segments; and
g)
other project staff who may have data relevant to planning specific social investment projects, resettlement or influx management as examples.
Lastly, and notably, through the above assessments, efforts should be made to minimize potential resettlement impacts. This may involve redesigning the project footprint, relocation project facilities, reassessing access routes to facilitate access to preferred customary lands and other measures in the project planning stage. This effort is optimized when done with the participation with impacted communities, which is one good reason to involve communities in the EA process in both defining impacts and in identifying ways or means to mitigate those impacts.
E. Sample Eligibility Framework Impacted Asset
Entitled Parties
Eligibility
Compensation
Registered owner
Registered owner of asset as of entitlement cut-off date
Compensation in cash at replacement rates.
RAP Chapter Reference
LAND Rural land
Registered owner Registered owner of asset as of entitlement cut-off date Customary users Customary users identified in socioeconomic survey, in livelihoods studies and by Community Relations department Urban land
Registered owner
Registered owner of asset as of entitlement cut-off date
Lease for operational period OR Cash purchase (for resettlement village lands) Access to replacement grazing land. Access to replacement sites for beekeeping. Development initiatives to improve quality of grazing lands, feed supply and access to fuel.
Standard replacement plot in new village. If smaller than existing, value difference. OR
In-cash compensation for eligible parcel at agreed replacement rates.
Village authorities
Lands registered to village authorities as of entitlement cutoff date
Registered owner
Registered owner of asset as of entitlement cut-off date
Replacement with like lands in new village.
STRUCTURES Residential structures
Standard replacement house in new village. If smaller than existing, value difference. OR In-cash compensation equivalent to value of replacement house.
Barns, fences, stonewalls, garages, ovens and outbuildings
Registered owner
Registered owner of asset as of entitlement cut-off date
Compensation in cash at agreed replacement value.
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Impacted Asset
Entitled Parties
Eligibility
Compensation
Communal facilities (structures)
Village authorities
Assets recorded in survey at time of entitlement cut-off date
Replacement of assets in new village.
Identified and unidentified grave sites in 2 existing cemeteries
Exhumation, reburial and religious ceremony at new cemetery, provision of a marked headstone; unidentified graves to be transferred to mass grave
Assets recorded in survey at time of entitlement cut-off date
Compensation in cash at agreed replacement rates.
Cemeteries
Single family representative for identified graves
CROPS Trees and crops
Planter and/or owner of the crop itself
Most directly impacted person/ household, namely the planter/ owner of the crop itself, regardless of land tenure LIVELIHOODS Land-based livelihoods
Economically displaced individual or household
Livelihood activities reliant on immoveable asset or access in Project Footprint
Participation in livelihood restoration and assistance programs.
Business
Business owner
Business owners recorded in survey at time of entitlement cut-off date
Compensation in cash for cost of reestablishing commercial activities elsewhere, lost net income during the period of transition, and the costs of the transfer and reinstallation.
ACCESS Access to roads
Customary users
Construction of road bypassing mine site
OTHER ASSISTANCE AND ALLOWANCES Dwelling
Tenant
Individuals/Househol ds that do not have title to the dwelling
Binding limited-term rental agreement for secure accommodation in replacement house of current
RAP Chapter Reference
Impacted Asset
Relocation expenses
Entitled Parties
Eligibility
Compensation
in which they reside and are not dependants of the landowner
landlord or in another replacement house elsewhere in the new village.
RAP Chapter Reference
Lump sum payment to cover mobilization/relocation expenses to new village location
Registered owner or tenant
AND Provision of one truckload for moving belongings OR Only available to households not moving to resettlement village
Cash payment equivalent to value of transportation allowance.
Structural materials
Registered owner
Registered owner of a residential structure prior to resettlement
Right to salvage prior to resettlement
Crops
Planter/ owner of the crop itself
Most directly impacted person/ household, namely the planter/ owner of the crop itself, regardless of land tenure
Right to harvest prior to resettlement
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F. Overview of Grievance Mechanisms A Grievance Management System receives and addresses concerns raised by stakeholders in a transparent, constructive, timely, confidential (if desired), culturally appropriate and accessible manner. The proponent should implement a Grievance Management System (Grievance Management System) that covers all areas of a project’s operations including access routes and other project facilities outside the primary project footprint. The Grievance Management System should be administered by community relations staff and be documented in a Standard Operating Procedure. The mechanisms used to lodge a grievance will be developed with local project stakeholders. The Grievance Management System will be fully document in the project specific RAP. The component In particular, the Grievance Management System must document the lodging and resolution of grievances related to land acquisition processes collect and resolve For all future land acquisition processes, a project-specific Grievance Management System, separate from the Standard Operating Procedure, will be established as part of the Phase 1 Livelihood Restoration or Resettlement Framework, in consultation with those affected. The Grievance Management System will be fully documented in the project-specific Livelihoods Restoration Program and Resettlement Action Plan. The component mechanisms a Grievance Management System are usually as follows:
First Order Mechanism, which comprises an informal resolution process in which a stakeholder brings forward his/her concern for discussion with his/her representatives, with members of a project’s technical team, or with a Grievance Management Officer (a dedicated community relations staff member). Usually, the vast majority of concerns will be heard and resolved within these informal interactions. If this informal process does not resolve an issue satisfactorily, complainants will be encouraged to make use of any of the other mechanisms presented below.
Second Order Mechanism, which comprises the management of substantive and/or written comments and concerns by a Grievance Management Officer. Most substantive grievances should be successfully resolved by this mechanism. However, when the Grievance Management Officer cannot resolve the matter, or when more complex issues require higher-level decision making, grievances will be forwarded on to the Third Order Mechanism.
Third Order Mechanism, which involves the management of grievances that are presented for resolution to the community body negotiating aspects of project planning with the project proponent (usually a resettlement working group). This body is usually a trusted arbiter in complicated grievances. Depending on the urgency of the grievance issue, the body may convene specifically to deal with a grievance, or grievances escalated to this level will be dealt with at regularly schedule meetings. Deliberation of grievances should be reflected in meetings minutes, and a written response provided to the complainant.
Fourth Order Mechanism, which involves the formal judicial system. In cases where project staff cannot satisfactorily address a grievance through on of the above mechanisms, parties have the right to take their grievances to the Papua New Guinean judicial system. This can occur at any time. A project proponent will inform people, households and communities that prefer litigation of their rights, entitlements and the existence of any legal aid.
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