Land at the Center of Inclusive and Sustainable Development Volume 1: Land Administration and Management INSPECTION PANEL EMERGING LESSONS SERIES NO. 8 INTRODUCTION Over the past three decades, the World territories, their regularization, and titling, Bank Inspection Panel has received as well as on the challenges relating to 163 Requests for Inspection from overlapping claims. The Cambodia example complainants, of which it conducted illustrates the complexity of regularization 40 investigations to date. Some land- in an urban setting with high population related topics have been covered in the density and vested economic interests. Panel’s earlier advisory reports, notably This report also presents supplementary those on involuntary resettlement, information from Panel cases on indigenous peoples, and intimidation and projects that—while not designated reprisals.1 However, the Panel’s cases have land administration and management raised issues relating to land that were not projects—nonetheless included relevant examined in these earlier Panel advisories. aspects of interest to the topic. These The cases presented below provide useful include two projects the Panel investigated insights, illustrate the interdisciplinary in Kenya, which illustrate the importance of nature and the complexity of land-related a comprehensive analysis to define project Waterfront housing in Panama development projects, and highlight the scope and timeline for land regularization extra care that must be paid to the broader activities and show challenges of securing 1 ABOUT THE INSPECTION PANEL AND ITS MANDATE ON ADVISORY SERVICES environmental and social risks. communal land title for indigenous people in a timely manner. The report The World Bank’s Board of Executive Directors (“the of operations. The case studies and insights presented This report focuses on Panel investigations also references a project in Brazil, which Board”) established the Inspection Panel (“the Panel”) in herein may also interest civil society organizations, non- of land administration and management touches on the complexity of land 1993 as an independent complaint mechanism for people governmental organizations, and academia. projects in Honduras, Panama, and regularization and capacity requirements, and communities who believe they have been—or likely will Cambodia. It explores some of the but which the Panel did not investigate. be—adversely affected by a World Bank-funded project. This report on Land Administration and Management challenges of land tenure security, is Volume 1 of the Panel’s eighth advisory publication, regularization, and titling and discusses Under its mandate, the Panel provides advisory services in titled “Land at the Center of Inclusive and Sustainable the importance of assessing the context in the form of lessons from its cases. These lessons endeavor Development,” which follows reports on Involuntary which such activities are undertaken, and to increase institutional learning at the World Bank and Resettlement, Indigenous Peoples, Environmental the challenges of stakeholder engagement throughout the larger development community to enhance Assessment, Consultation, Participation, and Information associated with them. The Honduras and the application of social and environmental policies and Disclosure, Biodiversity Offsets, Gender-based Violence, and Panama cases offer significant lessons on standards for the overall sustainability and effectiveness Intimidation and Reprisals. the alienization of indigenous lands and CASE STUDY 1: HONDURAS LAND ADMINISTRATION PROJECT (2006/07) The Project was prepared at a time when land tenure to non-indigenous occupants of ethnic lands—the Panel insecurity was deemed one of Honduras’ greatest found these measures to be insufficient. constraints to development. Most land was not formally registered; historical claims of indigenous and Afro- This Project was implemented in a context of land pressure Honduran communities required resolution. The project and conflict. The Garífuna had been affected by different supported implementation of a government reform external forces over time and had lost land once occupied strategy to address land tenure insecurity throughout the and used by their ancestors. Tourism and industrialized, country. The Project focused specifically on establishing and export-crop production attracted outsiders to their operating a decentralized land administration system, and ancestral lands. Non-Garífuna people had also developed it provided for systematic land regularization, titling, and vacation homes and cattle ranches, often excluding registration—including for municipal lands, urban and rural Garífuna from these lands. The Garífuna had pursued land areas, forests, protected areas, and ethnic lands. rights and claims to collective title for many years.3 However, in many communities, parts of the land over which the The Complaint alleged that the Project would significantly Garífuna had legal title had been illegally occupied, at times harm the indigenous Garífuna people and their claims to using fraud or through violence.4 Factors increasing pressure ancestral lands.2 The complainants said the Project would on their lands included the evolving legal and institutional endanger their culture and survival. They feared that the framework; actions by municipal to issue private titles 2 3 land titling and other Project activities would cause the loss within Garífuna communal land; overlapping land claims of Garífuna land rights and demise of collective property in and unregistered transfers; actions by outside entities to favor of individual property. According to the complainants, obtain land rights and title and subdivide the land, as well the Project did not reflect the special legal situation of the as the designation of protected areas in lands claimed and Garífuna in Honduras. traditionally used by the Garífuna.5 The Panel Investigation found merit in the complainants’ During the 1990s, the majority of Garífuna communities in concerns that the Project might contribute to demise of Honduras had received communal title to part of the land titles and claims to collective lands held by the Garífuna they occupied and claimed that it traditionally belonged to and other indigenous peoples. While acknowledging that them. However, the titled areas did not include their entire the Project included measures to protect such land rights— ancestral claim, and most titles excluded important areas of given the vulnerability of affected indigenous peoples and community use and resource management. In some cases, the fact that a new property law would give specific rights the titles received were extremely limited, and only covered the so-called “casco urbano” (urban perimeter) where The Garífuna community of Guadalupe their housing was located. In addition, although many titles land market favoring powerful elites at the expense of that the law may provide legitimate title in favor of people the Government to continue assessing the local legal given to the Garífuna communities created enforceable customary indigenous rights and in violation of laws that whose only claims to land were either uninterrupted framework, and to hiring a Honduran lawyer to review rights, land conflicts and occupation of Garífuna land by protect them.7 The complainants believed that—since this possession or whose request for title had not been opposed all relevant aspects of the changed legal framework as it outsiders continued. Moreover, some communities were law was the essential normative component of the legal by a legitimate owner.11 The Panel observed that the new relates to the land rights of indigenous peoples in Honduras, not titled at all or Garífuna families received individual titles framework supporting the Project—the Project would be law contained amendments to the legal and institutional including the new property law and other pertinent over communal land. The titling programs carried out over the instrument through which Garífuna territorial claims framework which were consistent with the Project’s laws. Management also committed to review with the the past two decades had not solved the situation of the would be denied and non-Garífuna would secure rights over objective and that constituted an essential part of the legal Government the procedures for regularizing ethnic lands. It Garífuna communities.6 their land.8 According to the complainants, the Project had framework within which the Project was implemented. further committed to work with the Government to update inadequately assessed the national legal framework since it However, the law also contained controversial provisions project documents and, if necessary, it would encourage A new property law—discussed by the Honduran Congress had not considered this law.9 relating to the recognition of indigenous land rights,12 such the Government to issue regulations or otherwise reduce when the Project was prepared—was enacted a few months as granting specific rights to non-indigenous occupants ambiguities and inconsistencies and make the relevant local after the Board approved the Project. The complainants The Panel found that the Bank had conducted an analysis of ethnic lands.13 While the complainants and Bank staff legal framework one which allows for the regularization of were greatly concerned that the Project would facilitate the of the legal framework regarding indigenous peoples’ raised many concerns about the new law—both before and ethic lands through consultative and conflict resolution application of certain provisions of this law that might be property rights, including the Garífuna in the Project area, after its enactment—there was no record showing that processes that would fairly take the interests of indigenous detrimental to established Garífuna rights and interests. The during project preparation.10 This legal analysis raised Management had adequately acted upon them.14 and Afro-Honduran peoples into account.16 complainants claimed the law would legalize non-Garífuna concerns about several amendments to the existing legal occupation of land for which Garífuna communities either and institutional framework provided by the new law and The Panel’s investigation found that, as recognized by Bank This investigation also focused on challenges relating to hold full communal property titles or have occupied for stated that these amendments must be considered in policies, the legal context in which a project is designed stakeholder engagement and local governance in this decades. They argued that the law would support a dynamic designing training and outreach programs. It also underlined and implemented is very important. In this Project, the context. In the 1950s, to organize themselves politically, 4 5 legal context was particularly important because the the Garífuna founded several entities which were the Crops and fields in Honduras complainants worried the Project would facilitate the precursors to the main Garífuna organizations at the time implementation of a law that they believed was highly of the complaint—OFRANEH (Organización Fraternal detrimental to their rights and interests. The Panel noted Negra Honduras) and ODECO (Organización de Desarrollo the Bank was not exempted from analyzing the potential Étnico Comunitario).17 A central aspect of the complaint implications of the law as part of the legal framework was that the Project failed to consult with their legitimate analysis required by Bank policies, just because regulations representatives to identify the needs and interests of the had not yet been issued and the alleged harm feared by the affected communities.18 The complainants were particularly complainants was, at that stage, only a potential one. The concerned about the establishment of the Mesa Regional Panel found Management was required to carry out this (or “Mesa”), a board for consultations created under the analysis after the law was enacted.15 Project. They explained that OFRANEH did not recognize the Mesa as an institution because it was not elected by As part of its Action Plan in response to the Panel’s the Garífuna communities and did not represent them. investigation, Management committed to working with The complainants viewed the Mesa as an organization that was alien to the Garífuna’s own institutions and which, In its Action Plan responding to the Panel’s investigation, SIDE BAR 1: Kenya Natural Resource therefore, could not be entrusted with fundamental Management said it had agreed with the Government that Management Project decisions about regularizing Garífuna land.19 the Inter-Sectoral Commission would meet specifically to In 2013, Cherangany-Sengwer communities address OFRANEH’s and ODECO’s concerns about project submitted a complaint to the Panel that this The Panel found that several meetings attended by the implementation. Together, the Commission and Project Project was supporting forced evictions from organizations representing the Garífuna took place during staff would evaluate and clarify the roles of the Commission their indigenous lands in forest areas. Although project preparation.20 The Panel carefully reviewed the and the Mesa as complementary, consultation fora under the Panel concluded that the Project did not formation and functioning of the Mesa, and considered the Project.27. support such evictions, it noted that the Project the creation of such an entity to unite the leaders and should have paid more attention to this risk from the outset and identified and established representatives of each Garífuna community represented In summary, this case study illustrates the project’s measures to mitigate it. an effort to establish consultations with and engage the challenging context of land pressure, competing uses participation of affected people.21 However, a consultation of land, and conflict, which caused the Garífuna to lose On the issue of land regularization and titling, framework for the Garífuna that excluded their leading their ancestors’ land over time. It examines factors that the Panel’s investigation noted that the project representative bodies—such as OFRANEH and ODECO— exacerbated this situation and describes the Garífuna’s was restructured in 2011 as Management had recognized that some elements of the Project’s and which lacked their support and guidance could not relentless pursuit of land rights and claims to collective Indigenous Peoples Planning Framework ensure genuine representation of the Garífuna people.22 title. It describes the challenges of land titling efforts, and were infeasible within the Project’s scope and The Panel expressed concern that the Mesa had put in how the granting of individual titles can affect communal timeframe. This included the provision of titles place a parallel system at odds with the way the Garífuna land rights. This case highlights the paramount importance for land occupied and used by communities in people had established, over the years, to represent of the legal context in which a project is designed and Project areas and assistance with land restitution 6 7 themselves regarding the critical issue of securing their implemented. An in-depth analysis of the national legal processes, such as indigenous peoples’ ability to rights over land.23 The Panel further noted that the Mesa framework serves to inform project design but must claim lands lost between 1895 and 2002. Since system had divided the community, marginalized existing also assess legislative changes that take place during it was determined that the Project could not representatives, and that it may have undercut efforts implementation and their impact on the project. Finally, implement these land-related commitments, to achieve collective title to ancestral land.24 It also may it demonstrates how a consultation framework designed they were dropped during the restructuring. have rendered the process of land demarcation and titling for a project challenged the established structure that The Panel recognized that the aspirations to vulnerable to manipulation.25 In addition, the establishment had organized and represented the Garífuna in their resolve long-standing historical land claims of the Mesa also led to a situation where the existing Inter- struggle for land rights over the years, thereby dividing of indigenous people were ambitious and commendable. The Panel held, however, that Sectoral Commission for Protecting the Land Rights of the the community and marginalizing their representatives, there was insufficient analysis of the potential Garífuna and Misquito People was ignored.26 potentially weakening efforts to achieve collective title to risks during appraisal, and a commensurate their ancestral lands. allocation of resources—financial and human— would have been required to plan, appraise, and implement such a complex undertaking. Cherangany hills in Kenya. CASE STUDY 2: PANAMA LAND ADMINISTRATION PROJECT (2009/10) and left it vulnerable to land tenure threats, and the the they would have under a Comarca law, and they feared that passing of a new law on collective lands, the impacts of this law would inhibit them from obtaining a Comarca in The Project aimed to support the Government address The Panel Investigation found that Management had, in which were unclear and worrisome to the Naso. The Panel the future.38 Management learned of this provision five days the inequality and extreme poverty of rural and indigenous many respects and during the initial stages of the Project, noted an important failure to analyze these changing after approval of the law, and promptly expressed concern to populations lacking secure land tenure in an environment complied with key policy requirements, especially as they circumstances.31 the Government about the law’s implications for the Naso.39 where land administration services were highly related to the Naso. The Panel noted that, later, when underfunded, bureaucratic, and fragmented. The Project the Project’s context underwent fundamental changes, A key aspect of this case was Project support of bills to A legal opinion commissioned by Management and sought to modernize land administration by simplifying Management should have been more engaged to analyze create a Naso Comarca. These bills went to Panama’s the opinions of several experts contacted by the Panel land titling procedures, improving the capacity of local and addresses them. Regarding the claims by the Ngäbe, the National Assembly in 2004 and 2005, but were rejected.32 concurred that Law No. 72 was not a legal obstacle institutions to map nearly half the country, establishing an Panel found that no field studies of sufficient depth seem The complainants believed these rejections occurred, at per se for the Naso to obtain approval of a Comarca, integrated registry and cadaster system to certify ownership to have been undertaken to detect possible problems in the least in part, because the Project had begun supporting provided they could gather enough support in the and correct titling, and consolidating protected areas and Annex Areas. a different bill—Law No. 72 on Collective Lands—which National Assembly.40 It was noted, however, that indigenous peoples’ territories. the National Assembly approved on December 3, 2008.33 parts of this law created a confusing legal situation This Project commenced amid historical struggles to The complainants argued that the Bank’s support of this which caused great anxiety among the Naso.41 The Complaints were submitted by two indigenous secure indigenous land rights, and at a time during which law was detrimental to their rights and undermined their communities—the Naso and Ngäbe—who alleged that private investment interests in Panama took off and land long-standing desire for a Naso Comarca.34 The Ngäbe, for The Panel found that, in the early years of Project project activities had contributed to a weakening of their disputes grew rapidly.28 Management acknowledged their part, alleged that Law No. 72 specifically prohibited implementation, the Project’s support for the preparation of rights to lands they traditionally occupied. The Naso claimed that longstanding conflicts and wars in Latin America the creation of new Annex Areas and was contrary to the a comarca bill was directly supportive of the territorial and the Project failed to support their aspirations to establish were primarily rooted in land tenure issues, and that creation of a juridical framework for them.35 administrative aspirations of the Naso.42 The Panel viewed 8 9 a Comarca—an area in which indigenous peoples have poor peasants and indigenous groups had lost increasing Management’s decision to support establishing Law No. 72 collective land rights and administrative authority—and had amounts of land. Management claimed it had always Management argued that it supported the creation of as a good faith measure that seemed reasonable under the taken actions contrary to this aim. To the Naso, ancestral known of this context and the challenges it posed for a Comarca for the Naso people. However, after the two prevailing political situation. Thus, it cannot be viewed as lands were tantamount to their survival as a group, and they project implementation, but that it considered supporting Project-supported bills were rejected, Management deliberately backing off from the commitment to support have struggled to obtain a Comarca since 1973. They also indigenous peoples consolidate their territories a worthwhile decided to lend its support to a subsequent bill, which the aspirations of the Naso, particularly given the signals at claimed the Project failed to consult with their legitimate development endeavor.29 eventually became Law No. 72, which regulated acquisition the time that the climate may have become less favorable representatives. The Ngäbe alleged that the Project did not of collective property rights for indigenous lands outside to the adoption of a Comarca. The Panel found, however, adequately address the urgent need to demarcate so-called According to the Naso, certain actions and omissions by the established Comarcas.36 The Project supported the law that this decision should have been followed by stronger Annex Areas—Ngäbe territories outside the core area of Project supported or enabled private development activities because Management regarded it as a viable, if less than efforts to seek clarity on the legal ambiguities of Law No. 72 their Comarca. Instead, they alleged, the Project proposed contrary to their territorial rights.30 During a crucial phase ideal, measure to improve the momentum for improved with respect to the territorial aspirations of the Naso.43 The restrictive land delimitations that were improper and based of project implementation, several events of great concern security of tenure.37 Law No. 72 included a new provision Panel also observed that Management failed to assess the on a flawed consultation process. to them converged. These included the failure of legislation that referred to a special territorial regime for the Naso, potential need for concrete mitigation measures to protect in the National Assembly to create their Comarca, a major which the complainants believed would grant them a much Naso territory in the legislative vacuum that existed after schism in Naso leadership—which divided the community lower level of administrative and political authority than rejection of the Comarca bills.44 Regarding Ngäbe concerns about the impacts of Law No. Law No. 72 and its regulations, and that the outstanding Panel’s investigation determined that Management’s efforts led to the potential for conflict between the Project’s “left- 72, the Panel believed Management should have followed land claims of the Naso and the Ngäbe be addressed by the to deal with both—even though the Government officially hand” (titling activities) and its “right-hand” (protection up on several inconclusive and, at times, contradictory legal National Authority of Land Administration as one of its recognized Tito Santana as the Naso king—denoted a of indigenous land areas), which was exacerbated by the opinions and reports.45 The Panel also noted that the Project’s immediate priorities.48. good faith attempt to ensure meaningful consultation and scale and pace of titling activities under the Project. In this early stages inadequately identified and addressed issues of that the genuine representatives of the Naso indigenous case, co-financing arrangements supported components land verification and delimitation of the Annex Areas, which One of the main allegations in this case was also that the peoples participated in the process.53 However, the Panel relating to titling, but not the component relating to the were home to many Ngäbe communities. This exposed their Project failed to properly recognize and consult with the noted that a significant amount of time had lapsed before protection of indigenous territories. While co-financing lands to development pressures over many years, hampering legitimate leader of the Naso indigenous people.49 Between Management recommended action in response to the risks arrangements undoubtedly increased the overall impact of their efforts to gain recognition of their lands.46 The Panel 2003 and 2004, a major schism in Naso leadership occurred posed for the Project by the Naso schism.54. the Project, they may have heightened the possibility that acknowledged the Ngäbe had lost lands due to tourism and when the Naso king, Tito Santana, supported a hydroelectric titling activities could take place within indigenous land other development activities. Examples of encroachment project. Those opposed to this project then recognized Tito In its Action Plan, Management explained that it would make areas intended for protection under the Project. included Government concessions for hydroelectric projects Santana’s uncle, Valentín Santana, as the new king.50 This left use of available opportunities to continue its engagement on indigenous lands, including the Chan 75 dam that the Naso community divided and vulnerable to land tenure on indigenous peoples’ issues in Panama. It would support a To summarize, this case study involves fundamental affected two Annex Areas. While the Bank did not finance threats. The complainants alleged that the Project continued multi-stakeholder workshop to discuss good practices and questions of the land rights and tenure security of the Naso Chan 75, the Panel noted that, had issues of co-management consulting Tito Santana on Project matters and thereby no strategies to support inclusive development of indigenous and Ngäbe indigenous peoples. It illustrates the challenges been properly addressed and the Annex Areas been delimited longer consulting with the “legitimate” representatives of peoples, drawing upon the lessons from this and other of pursuing both the regularization of individual tenure in a timely way, the Ngäbe would have been in a better the Naso. They also claimed this undermined their efforts to projects in Panama. Management committed to incorporate rights and the consolidation of indigenous territories in position to negotiate the terms and conditions of any gain recognition of the Naso Comarca.51. the Panel’s findings and lessons on consultations and other a complex environment confronted by land pressure and concession within their land.47 aspects of this Project into the design and implementation conflict. This case shows the importance of understanding 10 11 Management explained that, upon learning the of similar projects in the region.55 the impact of new legislation and the need to seek timely In its Action Plan in response to the investigation, complainants’ concerns, it stressed to the Government clarification of legal ambiguities that may adversely affect Management committed to recommend to the that the Project should consult with both groups to meet The Panel investigation concluded that, by seeking a project’s intended beneficiaries. It also demonstrates the Government to further enhance awareness among the policy requirements on meaningful consultations, and to regularize individual tenure rights and consolidate requirement to stay abreast of changing circumstances and indigenous peoples of the contents and implications of it encouraged mediation between the two “factions.”52 The indigenous territories, the Project design appears to have to adapt project design and implementation as needed. Cacao tree SIDE BAR 2: Kenya Electricity Expansion Project In 2014, Maasai communities in Kenya’s Rift the date of relocation. At that time, the June 2018. The April 2019 Progress Report Valley submitted a complaint to the Panel delays in securing title were due to a court explained that a 999-year leasehold title concerning their resettlement due to the case affecting a part of the land. After the for the resettlement site was transferred to construction of a geothermal plant. At first court ruled, the Panel learned the title the trustees in February 2019 and formally the Project Affected Persons (PAPs) agreed transfer had started and that this process handed over to the PAPs in March 2019. in 2013 to resettle if they got communal was expected to take one to three months. According to Management, the delays land title to the resettlement site; they When the Panel completed its investigation could be attributed to the following. First, ultimately received it in 2019. The transfer in July 2015, title still had not yet been the Government’s anti-corruption fight of another land title for a smaller plot, the transferred and the Panel noted in its report increased the due diligence needed for so-called Cultural Center area, required that, considering the long history of land land transactions. Second, there was a even longer. While the Panel investigation tenure insecurity of the Maasai, particular typographical error in a reference number in concluded before the land titles were attention must be paid to securing the the subdivision scheme, which was noticed transferred, Management’s Progress communal land title for them. during the titling process and required Reports on the implementation of its Following the Panel’s investigation and correction. Third, the Ministry of Lands Action Plan in response to the investigation Board approval of an Action Plan with issued the title—based on the approved provided further details on the land titling remedial actions, Management began subdivision deed plans—to the PIU which process. submitting yearly Progress Reports to was tasked to prepare a second transfer In July 2013, the PAPs and the Project the Board. The April 2018 Report stated to the PAPs’ trustees. The transfer of the 12 Implementation Unit (PIU) agreed that that the PAPs’ trustees had signed the Cultural Center land title was still being 13 resettlement would occur only after land title transfer forms for most of the land processed at that time. The June 2020 tenure was secured through communal in February 2018, and that these forms Progress Report confirmed that all relevant, land title. A year later, in August 2014, were lodged with the Ministry of Lands legal stages for the land transfer were when the title was still pending, the PAPs for registration and issuance of the title. completed, and only minor administrative and the PIU amended the agreement to This title transfer was expected to finish by steps remained to be finalized once the allow resettlement prior to obtaining this May 2018. The need to agree on the land’s Lands Office services resumed after title, and the PIU committed to process boundaries delayed transfer of the Cultural Covid-19 restrictions were lifted. the title deeds within six months from Center title, which was now expected by Landscape of the Rift Valley in Kenya SIDE BAR 3: Brazil Piaui Pillars of Growth CASE STUDY 3: CAMBODIA LAND MANAGEMENT AND ADMINISTRATION PROJECT (2009/10) and Social Inclusion Project (2019/20) In 2019, the Panel received a complaint about The Project took place in the context where the Khmer number were under threat of eviction in this area.56 The this Project, which included activities supporting Rouge regime had collectivized all land and destroyed all land Government of Cambodia did not recognize that the implementation of the Land Tenure Regulation records. The subsequent Government had initiated a program Project and these evictions were connected, but Bank Program and the strengthening of real property to issue land tenure certificates for private ownership, Management agreed with the complaint that a link rights. The complaint alleged that local which was progressing slowly due to limited Government existed.57 The Panel found that design flaws in the Project traditional communities had been excluded from capacity. The Project sought to assist the borrower’s efforts led to the arbitrary exclusion of land from the process.58 the land tenure regularization process under to implement actions, objectives, and policies designed to This had the effect of denying residents, especially the the Project, which complainants said mainly improve land tenure security and promote development of poor, the ability to claim their preexisting land rights supported agribusiness and large landowners. efficient land markets. This included the development of under the Project’s process. The Panel noted that the During its eligibility assessment, the Panel noted national policies, a regulatory framework and institutions project design also lacked a clear strategy to deal with land that the Project only supported access to land titling, registration, and legal ownership of the for land administration, the issuance and registration of disputes between state entities and private individuals. lands of small-scale farmers and traditional titles in rural and urban areas in Project provinces, and communities. The Panel noted that the Bank the establishment of an efficient and transparent land Another contextual dimension of the Project was that, may have underestimated the complexity of administration system. as prime urban land in central Phnom Penh, the Boeung the land regularization process and the capacity Kak Lake (BKL) area had long been considered ripe for requirements of the implementing agency at The Complaint alleged that after the municipality agreed redevelopment. While an international design competition the start of the Project. Nevertheless, the Panel with a private company to develop an area that included the for its redevelopment was ongoing, the Government had 14 observed that the alleged harm had not occurred 15 Boeung Kak Lake (BKL) area of Phnom Penh, the residents already decided to redevelop the area on a commercial basis as a result of the Project and that the slow pace there were unfairly pressured to leave. According to the drawing on a private developer with whom it had signed a of land titling in traditional communities was complaint, they were denied adjudication of their property 99-year lease for the land. This was followed by the approval due to factors outside the Project’s control, and claims, evicted from their homes, and given inadequate of a decree converting the BKL area including the lake, therefore did not recommend an investigation. compensation. The complainants alleged that the Project from state public land to state private land.59 The private failed to formalize their tenure and did not transfer their developer’s plans included filling in a major part of the lake, customary rights under formalized land titles, thereby which was a valuable natural environment and source of weakening their pre-existing tenure rights. livelihood for many people. Despite protests from residents and NGOs, the company started pumping sand into the lake. The Panel Investigation found that the BKL residents were Shortly after, the local press began reporting cases of flooded indeed denied access to due process to adjudicate their homes, pollution, sick children, and the death of a 61-year- property claims under the Project and that Management old man electrocuted during the area’s flooding. Many was slow to respond to the evictions. More than 1,500 houses collapsed into the water or became uninhabitable.60 Mandacaru cactus in the State of Piaui, Brazil families were estimated to have been evicted and a larger By 2009, the Project had registered and titled more than State public to State private land after being registered as in an area that fell under the Project’s land management access to due process to adjudicate their property claims 1.1 million parcels of land, which the Panel recognized as State land in the land registry “[u]nless otherwise provided and administration activities. While the Government in this under the Project. The case demonstrates the importance an important achievement.61 At the same time, the Panel by law”65 and in accordance with the Land Law. The Panel instance did not recognize the connection between the of assessing the national legal framework to inform project noted that the degree of recognition of customary and noted that a key objective of the Project was to undertake Project and the evictions, the investigation found that, due design, the need to stay abreast of changing classifications related possessory tenure systems varied greatly between such registration. The Panel noted that by leasing the BKL to design flaws, the Project had denied affected residents of affected land, and how this impacts project activities. areas, and such systems seem to have been weakened area for private development and reclassifying it from State over time.62 The degree of security provided by traditional, public property to State private property, the Government customary, or other non-formal land tenure systems, effectively determined that land around the lake, and especially in urban areas, had declined substantially since even the lake itself, lost its public interest use and could be Sand filling at the Boeung Kak Lake the early 1990s. Although this was well known before the subject to private property rights. By designating it as State Project was designed, and the project appraisal document private, the residents or possessors of land in the area could clearly acknowledged this problem and its challenges, the reasonably consider themselves as entitled to having their Panel found critical weaknesses in both the design and claims adjudicated.66 The Panel agreed. implementation of Project measures to protect poor and vulnerable groups relying on such customary or other non- In May 2011 Management submitted to the Board its formalized tenure rights.63 Response and Recommendation following the Panel’s investigation. In August 2011, the Bank decided to freeze The Panel examined the history of the tenure regimes, and new lending to Cambodia pending the resolution of issues historical policies and laws related to state land management. related to the BKL case, which continued for five years. 16 17 Its investigation focused on the 2001 Land Law, which Management issued an implementation completion and recognized three domains of land ownership in Cambodia: results report in December 2011, which indicated that the State public property (e.g., forests and protected areas) for Government issued Sub-decree # 183 in August 2011, giving resource conservation, State private property for economic over 700 families still living near the lake approximately and social development, and private property (e.g., residential 12 hectares of land on the planned development site, and or agricultural land).64 Under the definition of Article 15 of the Government issued titles to 259 of the families on the 2001 Land Law, BKL—a natural lake—is State public land, December 10, 2011.67 World Bank lending to Cambodia although the surrounding area remained undefined. Land resumed in 2016. Law stated that State public property can be transferred to State private property when State public property lose This case study illustrates a complex situation of land their public interest use. Land can only be reclassified from pressure and conflict, where large-scale evictions took place INSIGHTS ENDNOTES 1 This report found that 50 Panel cases had 16 The World Bank, Management Report 44 Ibid., p. 86. allegations of reprisals, of which 86 percent and Recommendation in Response 45 Ibid., p. 77. Land administration and management activities are intrinsically (43 cases) related to land concerns. See p. 24. to the Inspection Panel Investigation difficult to implement effectively and their success hinges on the 46 Ibid., p. v. 2 The Garífuna are descendants of the Report Honduras Land Administration Project (Credit No. 3858-HO) (Honduras 47 Ibid., pp. xxiv, xxv, and 83. enabling environment. Comprehensive risk assessments need Carib and Arawak native populations of the Amazon and Eastern Caribbean who Management Report and Recommendation), 48 The World Bank, Management Report to focus on the historical and social context of the project area August 3, 2007, p. 16. and Recommendation in Response to intermarried with enslaved Africans. and strive to understand different types of pressures on land and Succeeding generations retained their 17 Honduras Investigation Report, pp. 33 and 34. the Inspection Panel Investigation Report own language, culture, and religion, and Panama Land Administration Project (Loan underlying conflicts. It is critically important to conduct a wide- 18 Ibid., pp. x and 37. No. 7045-PAN) (Panama Management established a new identity that aided in their ranging analysis of the national legal framework at the outset to survival. Garífuna today live primarily on 19 Ibid., p. 44. Report and Recommendation), October 28, inform project design. It is equally important to keep abreast of the Caribbean coast of Central America in 20 Ibid., pp. 42 and 43. 2010, p. vii. , p. vii. Belize, Guatemala, Honduras, and Nicaragua. 21 Ibid., pp. 46-51. 49 Panama Investigation Report, p. 39. any changes or potential changes in legislation and other relevant In Honduras, there are 38 Garífuna 22 Ibid., p. 52. 50 Ibid., p. 40. factors, and the project beneficiaries’ views about these, and to communities. The Garífuna maintained 23 Ibid., p. 53. 51 Ibid., pp. 39 and 40. adjust project design or implementation in an appropriate and specific religious beliefs and festivals which 24 Ibid. 52 Ibid.. denote their connection with their land. They timely manner. Providing communal/collective titles to indigenous also maintained traditional communal uses 25 Ibid., p. xx. 53 Ibid., p. 41. groups is a complex undertaking and may compete with individual of land. The Inspection Panel, The Inspection 26 Ibid., p. 104. 54 Ibid., p. 42. Panel Investigation Report Honduras: Land 27 Honduras Management Report and 55 Panama Management Report and titling efforts in a given area. Such efforts require an in-depth Administration Project (IDA Credit 3858- Recommendation, p. 15. Recommendation, p. vii. understanding of the targeted beneficiary communities, their HO) (Honduras Investigation Report), June 28 The Inspection Panel, The Inspection 56 The Inspection Panel, The Inspection history, livelihoods, land management practices, and governance. 12, 2007, pp. 16-19. Panel Investigation Report Panama: Land Panel Investigation Report Cambodia: Meaningful stakeholder engagement should derive from an 3 Ibid, p. 32. Administration Project (Loan No. 7045- Land Management and Administration 18 4 Ibid, pp. 20-31. PAN) (Panama Investigation Report), Project (Credit No. 3650 - KH) (Cambodia 19 understanding that land tenure security shapes the lives of project- September 16, 2010, pp. v and vi. Investigation Report), November 23, 2010, p. 5 Ibid, p. xv and 29. affected people for generations, and in the case of indigenous 6 Ibid, pp. 30 and 31. 29 Ibid., pp. xi, xii, and 5. xi. peoples, is often a matter of survival of their community and 30 Ibid., p. 30. 57 Ibid., p. 33. 7 Ibid, p. 56. 58 Ibid., p. 67. identity. A thorough understanding of local governance structures 8 Ibid. 31 Ibid., pp. 86 and 87. 32 Ibid., p. 31. 59 Ibid., pp. xv and 27. and power relations—especially those concerned with community 9 Ibid., p. xxi. 33 Ibid., p. 33. 60 Ibid., p. xvi. representation in Project-related, stakeholder engagement 10 Ibid., p. 58. 34 Ibid., p. x. 61 Ibid., p. 64. 11 Ibid., pp. 58-60. processes—is also critical. 35 Ibid., p. vi. 62 Ibid. 12 Ibid. p. 61. 36 Ibid., pp. xvii, xviii, and 6. 63 Ibid., p. 66. 13 Ibid., p. 63. 37 Ibid., p. 33. 64 Ibid., p. 17. 14 Ibid., p. 62. 38 Ibid.. 65 Royal Decree on ‘Principles and Transitional 15 Ibid., pp. 68 and 69. Provisions on Transferring Public Properties 39 Ibid., p. 6. of the State and Public Legal Entities,’ 40 Ibid., p. 49. August 3, 2006, Article 14. 41 Ibid., pp. xviii and xix. 66 Cambodia Investigation Report, p. 41. 42 Ibid., p. 38. 67 The Inspection Panel, Annual Report July 1, Housing structure in Panama 43 Ibid., p. 52. 2011-June 30, 2012. Photo credits: Cover photo; page ii; page 3; page 13; page 17; page 18 IPN/World Bank. page 1: malerapaso/istockphoto.com; page 4: lanabyko/istockphoto.com; page 7: idfied/shutterstock.com; page 10-11: Juan Carlos Muñoz/Alamy Stock Photo; page 14: Wirestock/istockphoto.com