PROJECT MANAGEMENT UNIT NO.5
(PMU-5) / IDA/WB
P075407-VN
VIETNAM
THIRD RURAL TRANSPORT PROJECT
RP341-Vol. 1
Policy Framework for Land Acquisition, Compensation, Assistance and Resettlement for SWAp
DRAFT FINAL REPORT
Prepared by
Roughton International
June 2005
Policy Framework for Land Acquisition, Compensation, Assistance and Resettlement for SWAp
Table of Contents
Abbreviations
Definition of Key Terms
1 Introduction 1
2 Legal Framework 1
2.1 Laws Regarding Land Acquisition in Viet Nam 1
2.2 Comparative Analysis of Government & World Bank Policy on Social Safeguards 2
2.3 Project Policy Framework 3
2.3.1 Basic Principles 3
2.3.2 Project Policies 4
2.3.3 Project Affected People 4
2.3.4 Criteria for Eligibility 4
2.3.5 Project Impacts & Entitlement 5
2.4 Timing of Compensation Payment 7
3 Institutional Framework 14
3.1 Implementation of Social Safeguards Under the Project 14
3.1.1 Lessons Learned from RT2 14
3.1.2 Gaps Between Government and Donor Procedures 14
3.1.3 Institutional Aspects 15
3.1.4 Summary 15
3.1.5 Appraisal of Capacity for Implementing Safeguards under RT3 16
3.2 Institutional Arrangements 17
3.2.1 Project Management Unit No. 5 17
3.2.2 Provincial Project Management Units 17
3.2.3 Responsibilities of People’s Committees 18
3.2.4 District Compensation, Assistance & Resettlement Boards 19
3.2.5 Responsibilities of Provincial Government Departments 19
3.2.6 Responsibilities of Various Groups during Compensation Payment 20
4 Process for Resettlement Plan Preparation 20
4.1 Resettlement Tools 20
4.2 Resettlement Screening 20
4.3 Inventory of Losses & Detailed Measurement Survey 21
4.4 Socio-Economic Survey of Severely Affected PAPs 22
4.5 Preparation of Resettlement Plans 22
4.6 Disclosure 23
5 Public Consultation, Participation & Grievance Redressal 24
5.1 Consultation During Resettlement Plan Preparation 24
5.2 Consultation During Plan Implementation 24
5.3 Grievance Redressal Mechanisms 24
6 Implementation Schedule 25
7 Monitoring 25
7.1 Monitoring of Resettlement Activities Under RT3 25
7.2 Internal Monitoring 25
7.3 External Monitoring 25
7.4 Monitoring of Achievement of Equivalency 25
8 Costs and Flow of Funds 25
8.1 Cost Estimate 25
8.2 Funding Source & Flow of Funds 25
Appendices
Appendix 1 – Comparison of Vietnamese Law & World Bank Policy on Resettlement
Abbreviations
AWP Annual Work Program
CARB Compensation, Assistance & Resettlement Board
CPC Commune People’s Committee
DARD Department of Agriculture & Rural Development
DfID Department for International Development (British Government)
DP Displaced person
DPC District People’s Committee
DPI Department of Planning & Investment
DMS Detailed measurement survey
DoF Department of Finance
DoNRE Department of Natural Resources & Environment
IOL Inventory of losses
Km Kilometer
M&E Monitoring and Evaluation
MoT Ministry of Transport
MPI Ministry of Planning and Investment
OP Operational Policy
PAP Project Affected Person
PDoT Provincial Department of Transport
PIB Public Information Booklet
PMU5 Project Management Unit No. 5
PPC Provincial People’s Committee
PPMU Provincial Project Management Unit
RP Resettlement Plan
RT1 First Rural Transport Project
RT2 Second Rural Transport Project
RT3 Third Rural Transport Project
SWAp Sector Wide Approach
VND Vietnamese Dong
WB World bank
Definition of Key Terms
Compensation means payment in cash or kind for an asset to be acquired or affected by a project at replacement cost.
Cut-off-date means the date after which people will NOT be considered eligible for compensation i.e. they are not included in the list of PAPs as defined by the census.
Detailed measurement survey means the detailed inventory of losses that is completed after detailed design and marking of project boundaries on the ground.
Encroachers mean those people who move into the project area after the cut-off date and are therefore not eligible for compensation or other rehabilitation measures provided by the project.
Entitlement means the range of measures comprising cash or kind compensation, relocation cost, income rehabilitation assistance, transfer assistance, income substitution, and relocation which are due to /business restoration which are due to PAPs, depending on the type and degree nature of their losses, to restore their social and economic base.
Income Restoration means the measures required to ensure that PAPs have the resources to at least restore, if not improve, their livelihoods.
Inventory of losses means the pre-appraisal inventory of assets as a preliminary record of affected or lost assets.
Land recovery means the process whereby a person is compelled by a public agency to alienate all or part of the land s/he owns or possesses, to the ownership and possession of that agency, for public purposes, in return for fair compensation.
Non-titled means those who have no recognizable rights or claims to the land that they are occupying.
Project Affected person (PAP) means the same as displaced person within the meaning of World Bank’s policy OP 4.12, and means any person experiencing effects from land acquisition regardless of whether they are physically displaced or relocated or not.
Resettlement plan means the time-bound action plan with budget setting out resettlement strategy, objectives, entitlements, actions, responsibilities, monitoring and evaluation.
Significant means 200 people or more will experience major impacts, which are defined as being physically displaced from housing, or losing more than ten cent of their productive assets (income generating). To reflect the prevailing context in Viet Nam, World Banks will accept a 25 per cent loss as the threshold of significance for the RT3 project.
Vulnerable means any people who might suffer disproportionately or face the risk of being marginalized from the effects of resettlement i.e; (i) female-headed households with dependents; (ii) disabled household heads; (iii) poor households; (iv) landless elderly households with no means of support; (v) households without security of tenure; and (vi) ethnic minorities.
iii
1 Introduction
The Third Rural Transport Project (RT3) includes rehabilitation and improvement of rural district, commune roads in 33 provinces in Viet Nam, through the use of low-cost engineering techniques and spot improvements. The project will be planned, designed and implemented in a phased fashion.
The project is being implemented by Ministry of Transport (MoT) through its Project Management Unit No. 5 (PMU5) which is working with counterparts in Provincial Departments of Transport (PDOTs), each of which had established a Provincial Project Management Unit (PPMU) for the project.
The project will be implemented in phases between 2005 and 2010. The first phase includes the preparation of documents for four pilot provinces and 100 km of road rehabilitation and will be followed by phases based on annual work programs. The second phase will include approximately 1,500 km in 16 provinces.
To meet the requirements of World Bank’s OP 4.12 Involuntary Resettlement policy, this Project Framework has been developed. The Policy Framework has been applied to the plans prepared for the four pilot provinces and will be applied to all future resettlement plans to be prepared in the 33 provinces for roads to be upgraded under the project.
2 Legal Framework
2.1 Laws Regarding Land Acquisition in Viet Nam
The main laws and decisions regarding land acquisition include:
· The Constitution of the Socialist Republic of Viet Nam (April 1992);
· The Land Law No. 13/2003/QH11 (December 2003);[1]
· Decree No. 181/2004/ND-CP (October 2004) on guiding the implementation of the Land Law;
· Decree No. 197/2004/ND-CP (December 2004) on compensation, assistance and resettlement when the State recovers land;
· Circular 116/2004/TT-BTC (December 2004) on guiding the implementation of Decree 197;
· Decree No. 188/2004/ND-CP (November 2004) on methods for determining land process for various types of land;
· Circular 114 /2004/TT-BTC (November 2004) on guiding the implementation of Decree 188;
· Decree No. 60/CP (July 1994) on property ownership and the right to use urban residential land;
· Decree No. 45/CP (August 1996) allowing land use rights to those non-eligible under Decree No. 60/CP; and
· Decree No. 64/CP (September 1996) transferring agricultural land to households for long-term use.
The Land Law 2003 is a comprehensive law that establishes the regulations of land allocation, lease management, land acquisition for development purposes, changes of land value under market mechanisms, and gives people access to land through land-user rights via land use right certificates (LURCs), which are similar to private ownership. In essence the law allows the State to recover land in cases of national defence or security, or national and public interest. In these cases, under Article 27, the land user will be compensated for loss of land or assets[2].
The revised Land Law and new Decree 197 go a long way to closing the gaps that previously existed between Government’s and standards required to be applied under various official development assistance and therefore now more closely approaches the principles of the World Bank’s policy on involuntary resettlement (OP 4.12).
As discussed below there are still gaps between Government’s procedures and the requirements of OP 4.12. Waivers of a n umber of articles of the Land Law and Decrees will be required to ensure that the World Bank’s policy is complied with. Such waivers of Vietnamese law and decrees are provided for under both Decree 197 and Decree 17/ND-CP (May 2001), which regulates the management and use of official development assistance. Under Decree 197, Article 1 (2) states that in the case where Viet Nam has signed an agreement for official development aid and the agreement or treaty contains regulations that are different from the regulations provided in the decree, then the regulations of the agreement or treaty shall be applied. While under Decree 17, Article 29 stipulates that where an international aid agreement has provisions that are inconsistent with the provisions of Viet Nam law, the provisions of the official development assistance agreement shall prevail.
2.2 Comparative Analysis of Government & World Bank Policy on Social Safeguards
To date resettlement undertaken for projects funded in whole or in part by the World Bank or other donors has required waiver of a large number of specific articles of Government’s regulations and decrees in order to fully and properly apply the resettlement and compensation policies and standards of donors.
While the new Land Law and Decrees 188 and 197 have come a substantial way in closing the gaps between Government and donor requirements in respect of resettlement, there are still significant differences between the two sets of procedures in key and fundamental areas. This is explained in detail below.
In addition, the Government does not have any regulations, decrees or law which parallels the World Bank’s policy on Indigenous People, and therefore there is no equivalence of policy or objectives in respect of ethnic minority development. Currently ethnic minority development is handled through a number of unrelated programs (and projects) and tends to produce ad hoc outcomes that do not seek the same outcomes as the Bank’s policy.
The minimum standard encapsulated in the Bank’s safeguard policy is to ensure that ethnic minority people receive culturally compatible social and economic benefits from development projects, and to avoid or mitigate potentially adverse impacts on ethnic minority people, and to this end the policy requires special action for any activities that may affect ethnic minority people.
In essence, these differences amount to risks that Government procedures are not sufficient to meet, or provide equivalence to, the standards for resettlement and ethnic minority development as required by World Bank.
Appendix 2 provides a summary of the strengths, weaknesses, opportunities and threats (SWOT) associated with adopting the country system.
The Decree sets out the basis upon which structures, crops and trees will be compensated. However, there are a number of exemptions for compensating houses and structures which prove to be a significant departure from the standard set in the World Bank policy (see below).
However, there are still differences between the Vietnamese requirements as set out in the Land Law and new Decree and World Bank’s Policy OP 4.12, in summary these differences are:
· The ‘significance’ of impact is triggered by a loss of 30 per cent or more of agricultural land in Decree 197, in OP 4.12 the trigger is a loss of 10 per cent or more of productive land/assets, although a reduced standard of 20 - 25 per cent is applied by the World Bank in Viet Nam;
· Assistance (life and production stabilization) is only provided to households engaged directly in agricultural production;
· Decree 197 recognizes non-legal users or users without papers or documents ONLY if they have been using the land to be affected by a project in a stable manner since PRIOR to 15th October 1993;
· OP 4.12 does not provide for any deductions from compensation, Land Law and Decree 197 provide for deductions from both land and assets compensation in a number of circumstances;
· Houses and structures will not be compensated if they have been constructed without permission, constructed in contravention of a land use plan, or if they have encroached upon a demarcated safety protection corridor;
· Houses and structures will only be compensated to 80 per cent of their value or compensation rate if they have been built on land that is ineligible for compensation;
· Decree 197 recognizes businesses or economic entities as DPs only if they hold a business certificate (i.e. excludes non-registered businesses);
· Decree 197 recognizes DPs losing employment only on a permanent basis (i.e if they are made redundant) and only if the DP has an employment contract and is employed by a business or economic entity holding a business certificate;
· Systems of machinery and production lines will only be compensated to the value of dismantling, transporting and re-installation. The Decree does not include any compensation for income lost or foregone associated with the impact;
· Under Decree 197, assistance for occupational change and job creation is only provided to DPs engaged directly in agricultural production and in cases where more than 30 per cent of their agricultural land is affected;
· The requirements for consultation in the Land Law and Decree 197 are limited to “informing” DPs rather than providing information and seeking feedback from those directly affected;
· Neither the Land Law nor Decree 197 require the preparation of resettlement plans, the Decree requires “appraisal of a scheme of compensation”; and
· It is unclear whether Decree 188 can provide for compensation of land at full replacement cost.