Why is land a fundamental issue to the Tamils?

Image courtesy DBS Jeyaraj

Introduction

President Jayewardene did not like the word ‘colonisation’. Instead, he preferred the terms ‘land settlement’. But the Land Settlement Ordinance uses ‘settlement’ to mean a settlement on claims over ‘land’.  Item 18 of the Provincial Councils List of the 13th Amendment, reads as follows:

18. Land, – Land, that is to say, rights in or over land, land tenure, transfer and alienation of land,  land use, land settlement, and land improvement, to the extent set out in Appendix II.

As against the above entry, let us have a look at what appears in  item 18 of the State List of the Indian Constitution:

18. Land, that is to say, right in or over land, land tenures including the relationship of landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans; colonisations.

The terms  “rights in or over land” would include the term “land settlement”  as understood in the Land Settlement Ordinance of Sri Lanka.  Hence the terms “land settlement” in item 18 of the Provincial Council List in the Sri Lankan Constitution  must necessarily mean “colonisation” as given in item 18 of  the State List of the Indian Constitution.

Such play with words are endemic throughout the 13th Amendment to the Sri Lankan Constitution,  indicating the  want of  Sri Lankan Governments’ will in devolving powers to the Tamils.

National Land Commission

Having understood the meaning of  terms used in in item 18 of the Provincial Council List, let us go into the nuts and bolts of  the subject of ‘land’ in the 13th Amendment. Proceeding from item 18, let us look at the Appendix II. This Appendix has three paragraphs. Let us first look at paragraph 3. It says that the Government should establish a ‘National Land Commission’ which would be responsible for the formulation of national land policy with regard to the use of State land and that the Commission should include representatives of all Provincial Councils. Needless to say that the Commission has to be established by an Act of Parliament.

The question then arises as to why this was this not done? Who now decides national policy? The answer to the second question  is, the Minister of Lands in the Cabinet of Ministers or his bureaucracy  in the Land Commissioner General’s Department.

The National Land Commission is required to have a Technical Secretariat representing all the relevant disciplines relating to land use to assist the National Land Commission. Such a Technical Secretariat has also not been established. The Land Use Committees functioning in the District Kachcheris cannot claim the statutory status to play the role of this Technical Secretariat.

Paragraph 3 goes on to state that in the exercise of powers devolved on them on ‘land’ the Provincial Councils shall give due regard to the national policy formulated by the National Land Commission. Since there is no National Land Commission, one must conclude that there is no national policy on land.  Such a harsh conclusion is the main explanation for all the goings-on in  respect of  ‘land’ in the North and East of Sri Lanka.

State Land Required by a Provincial Council

State land continues to vest in the Republic and only the President is empowered to deal with grants and other disposition of such land. Now let us look at paragraph 1 of Appendix II. Subparagraph 1:2 has a mandatory requirement that the Government of Sri Lanka shall make available state land to a Provincial Council for a Provincial Council subject. In practice, that is not what happens. The Rules for the release of state land to Provincial Councils were  made by the Central bureaucracy. There was no consultation with the Provincial Councils in the framing of these Rules. Further, a Provincial Council must first make the necessary statute and thereafter  make the request for land. How expeditiously the request will be honoured will depend on the Commissioner General of  Lands and the relevant Divisional Secretary. It sounds very nice when the Constitution says that state land required by a Provincial Council shall be made available to that Council by the Government. But in practice, it is otherwise.

Appendix II is silent on the release of state land for a Concurrent subject required by a Provincial Council. The Provincial Council  has to depend on small mercies of the bureaucracy of the Government of Sri Lanka for state land for a Concurrent subject.

State Land Required by the Government in a Province

Subparagraph 1:1 of Appendix II states that state land required by the Government of Sri Lanka for a Reserved subject or a Concurrent subject may be used by the Government, but in consultation with the relevant Provincial Council. This consultation rarely takes place. In the Eastern Province, in one instance did the Government request for the recommendation of state land in Sampur for a Heavy Industrial Complex. The Board of Ministers of the Eastern Province  recommended the use of state land, subject to a condition which stated that the project should commence  activities within six months of their recommendation. The activities never started, and hence the recommendation has lapsed.

The Board of Ministers of the Eastern Province  recommended the release of plots to some 40 operators for tourism purposes  in the Kuchchaveli Division. However, only, two operators commenced operations. The other plots are now in the hands of the Tourism Development Authority. My contention is that the recommendations which had not been utilized have lapsed and new operators have to apply afresh and their applications have to come before the Provincial Board of Ministers.

On the other hand, the Defence Ministry never requested  for recommendation of  the Northern or Eastern Provincial Councils for state land used for its teeming multitude of camps.

State Land Under Inter-Provincial Irrigation Projects

In paragraph 2 of the Appendix II, the definition given for an inter-provincial irrigation project reads as follows:

(a) a project across a river which flows through more than one Province.

(b) A project which utilizes water through diversions from water systems from outside the Province

(c)  A project whose command area falls within two or more Provinces.

Of these definitions, the only sensible definition could be (c).

In Sri Lanka, of the 103 river basins identified by the Irrigation Department, more than 50 %  of the rivers of these basins fall under definition (a). Gal Oya Reservoir and Unnichchai Reservoir in the Eastern Province belong to this category. By the definition under (b), Giant’s Tank in the Northern Province which utilizes water flowing from the Tekkam Anicut across Aruvi Aru  would yet be an inter-provincial scheme, since Aruvi Aru originates in the North Central Province. Similarly, Kantalai Reservoir whose Per Aru catchment is confined to the Eastern Province,  receives augmentation flow from Minneri Kantalai Yoda Ela, and for that reason,  falls under the category of inter-provincial irrigation scheme.

If one were to apply  definitions (a) and (b) for rivers in India, Mettur Reservoir Scheme  should be a scheme under the Central Government of India and not one under the Tamil Nadu Government. Similarly the Indira Gandhi Canal across an international river Indus, which canal traverses through more than one State would have to be a project under the Central Government of India or under the United Nations!

Such situations in Sri Lanka where a river flows through more than one Province or where augmentation supplies have to come from outside a Province must have water- sharing arrangements decided by  an  Inter-Provincial Irrigation Commission.

Be that as it may, paragraph 2 clearly state that the administration and management of  all inter-provincial irrigation and land development schemes will be the responsibility of the Government of Sri Lanka. Subparagraphs 2:3 to 2:7 lay down certain criteria. Subparagraph 2:3 state that size of holdings of agricultural and homestead lands will be determined by the Government of Sri Lanka in consultation with the Provincial Councils. No such consultation appears to have ever taken place. Subparagraph 2:4 stipulates that selection of allottees will be determined by the Government of Sri Lanka based on certain criteria, and the Provincial Councils were to apply them, but none has heard of such things happening. Subparagraphs 2:5, 2:6 and 2:7 lay down conditions regarding distribution of allotments based on national ethnic ratio without significantly altering the demography of any Province. A community could receive its quota in  another Province if it does not like a particular Province.

The Mahaweli Scheme

Let us see how these stipulations have been applied in practice. With regard to the overall Mahaweli Scheme, almost all provisions of the 13th Amendment with respect to land have been disregarded. More than 26,000  Sinhalese families had been settled in the System C area (Dehitattakandiya) in the Amparai District of the Eastern Province.

According to a publication issued by the Mahaweli Authority of Sri Lanka at the  end  of 1998,    94,000 families had been settled in Systems B (Left Bank), C, G, H and L of the Mahaweli Scheme, out of which Tamil families comprised only 1.9% and Muslim families comprised 3.2%. This attitude in the alienation of land goes on irrespective of  what is stated in the Constitution.

If this attitude towards the  Tamils and Muslims in the colonization of the Eastern Province of the Mahaweli Scheme  is not rectified, serious questions would have to be answered by the Government.  As an attempt to make amends, I urge that in System B (Right Bank) 10,000 Tamil families and 4,000 Muslim families  be settled. But the indications are otherwise, as evidenced by the names given in the documents of the Mahaweli Authority for places in the Amparai and Batticaloa District. Nissankapura, Hastipura, Sapumalpura, Ransaratenna, Panduwaspura, Kelanipura and Randiyanuwara are some of these names. Further, in August 2008, The Mahaweli Authority had called for proposals for establishing commercial farms in the System B (RB) area, unmindful of the injustice already meted out to Tamils and Muslims in the Eastern Province.

Other Tools Used to Undermine Land Powers of the Provincial Councils

Various institutions of the Government of Sri Lanka make use of Acts of Parliament most of them enacted before the enactment of the 13th Amendment of the Constitution to undermine the powers conferred on the Provincial Councils on land. The relevant Acts are:

(1) Mahaweli Authority Act No. 23 of 1979 (as  amended)

(2) Urban Development Law No. 41 of 1978 (as amended) and Town and Country Planning Ordinance  No.13  of 1946 amended by Amendment Act No. 49 of 2000

(3) Sri Lanka Ports Authority Act No. 51 of 1979

(4) Tourism Act No. 38 of 2005 which retains sections of the Tourism Development Act No. 14 of 1968

(5) Antiquities Act No.  24 of 1998 together with the Archeological Sites of National Importance Act No. 16 of 1900

Let us look at them, one by one.

Mahaweli Authority Act No. 23 of 1979 (as amended)

The provisions relating to land are:

“3. (1) The Minister may, with the approval of the President from time to time, by Order published in the Gazette declare any area which in the opinion of the Minister can be developed with the water resources of the Mahaweli Ganga or of any major river to be a special area (herein after referred to as ” Special Area “) in or in relation to which the Authority may, subject to the other provisions of this Act, exercise, perform and discharge all or any of its powers, duties and functions.”

“22A. It shall be lawful for the Minister to whom the administration of this Act is assigned to exercise in, or with respect to, any special area-

(a) the powers conferred on a Minister by paragraph (b) of the proviso to section 20 of the Land Development Ordinance ;

(b) the powers conferred on a Minister by sections 49, 51, 79 and 80 of the Crown Lands Ordinance.; and

(c) the powers relating to special grants and leases of State land conferred on a Minister by any provision of the Crown Lands Ordinance or by any Order or regulation made thereunder.”

The above provisions are very clear It gives a license to the Minister in charge of the Mahaweli Authority to do whatever he likes with respect to land, disregarding the provisions of the 13th Amendment to the Constitution.

Very recently, the whole of Maha Oya DS Division and the Padiyatalawa DS Division in the Eastern Province were declared as Special Areas under the Mahaweli. Their extents are 667 and 379 square kilometres respectively. Furthermore, the Rambukkan Oya irrigation project has been declared as a Special Area too. By no stretch of imagination will the Mahaweli flow in the direction of these three areas. But the implication is that in addition to the two DS Divisions, the command area under the Rambukkan Oya project falling within the Batticaloa District will also be outside the authority of the Provincial Council for the purpose of land.

If this trend continues, it is very likely that other major irrigation projects in the Magilavattuvan and Mundeni Aru Basins to be undertaken in the future, namely, Maha Oya Reservoir, Gallodai Aru Reservoir and Magilavattuvan Reservoir will also declared as Special Areas by the Mahaweli Authority, in addition to declaring Eravurpattu DS Division in the Batticaloa District also as a Special Area.

Sooriyapura GN Division in the Kantalai DS Division consisting, which in extent is equal to the Seruvila DS Division has been declared a Special Area under the Mahaweli Scheme. It does not use the water resources of the Mahaweli Ganga although the river flows through it. Only a series of lift-irrigation pumps will permit the water resources of Mahaweli to be utilized. What is now visible is that several highland settlements are taking place along the Allai-Kantalai Road, in all probability, illegal settlements. The area is now outside the authority of the Eastern Provincial Council for the purpose of alienation of state land.

Urban Development Law No. 41 of 1978 (as amended)

Town and Country Planning Ordinance No.13 of 1946 (as amended)

Under the Urban Development Law, all lands in the two DS Divisions of Trincomalee Town and Gravets and Kuchchaveli have been gazetted as urban development areas, resulting in certain powers of local authorities in these Divisions being usurped by the Urban Development Authority.

The long title of the Town and Country Planning Ordinance. No. 13 of 1946 as amended reads as follows:

“An Ordinance to authorize the formulation and implementation of a national physical planning policy; the making and implementation of a national physical plan with the object of promoting and regulating integrated planning of economic, social, physical and environmental aspects of land in Sri Lanka; to provide for the protection of natural amenities, the conservation of natural environment, buildings of architectural and historic interest and places of natural beauty; to facilitate the acquisition of land for the purpose of giving effect to such plan and to provide for matters incidental to or connected with the matters aforesaid”.

Let us also have a look at some other provisions in the amended Act and figure out their implications:

“2. A national physical plan may be prepared under this Ordinance in conformity with the national physical planning policy, with respect to land, whether there are or are not buildings thereon, with the general object of promoting and regulating the development of the land, of securing proper infrastructure, amenities and conveniences, of conserving the natural and built environment of architectural, historic of aesthetic interest and of natural beauty.”

“6. (1) Every Municipality, and every town within the meaning of the Urban Councils Ordinance, shall be an urban development area for the purposes of this Ordinance.

(2) The Minister may, by Order published in the Gazette, declare an urban development area for the purposes of this Ordinance.

(a) that any town within the meaning of the Town Councils Ordinance and specified in the Order, or

(b) that any area, other than a Municipality or a town referred to in subsection (1) or paragraph (a) of this subsection, specified in the Order,

(3) Any town, or any area referred to in paragraph (/a) of subsection (2), which is declared by or under this Ordinance to be an urban development area shall, notwithstanding that it may be included in any regional development area, continue to be an urban development area and the provisions of this Ordinance shall apply accordingly.”

Sri Lanka Ports Authority Act No. 51 of 1979

Let us have a look at some of the provisions in the Act relating to land:

“(1) Notwithstanding anything in the Crown Lands Ordinance or any other written law, where the Minister considers that any land of the Republic is required by the Ports Authority for the purposes of its functions the Minister may, with the concurrence of the Minister in charge of the subject of Lands, by Order (hereafter in this Act referred to as a “Vesting Order”) Published in the Gazette, vest such land in the Authority with effect from such date as shall be specified in the Order, subject to such restrictions or conditions, if any, as may be so specified.

(2) A Vesting Order shall, subject to such restriction and conditions as may be specified in the Vesting Order, have the effect of giving the Ports Authority absolute title to any land specified therein free from all encumbrances.”

An extent of 9000 acres in Trincomalee District was vested as Ports Authority land. This land covered the whole of China Bay and Kappalturai villages up to the limit of Palapottaru. The extent of the land has now been reduced by 50% by excluding Kappalturai village from the Vesting Order. Some land was also released by the Ports Authority for industrial purposes.

Why as much as 7 square miles of land is required by the Ports Authority, extending up to the Kany- Trincomalee Road remains a mystery. The Eastern Provincial Council has no authority over this area.

Tourism Act No. 38 of 2005 incorporating sections of Tourism Development Act No. 14 of 1968

Now, let us have a look at the relevant provisions of the Act with regard to land:

“26. (1) The Minister may on the recommendation of the Authority from time to time, declare by Order published in the Gazette, any area to be a Tourist Development Area (hereinafter referred to as “an Area”).

(2) The Authority may prior to making any recommendation under subsection (1), conduct such public hearing after due notice to the inhabitants of that area or any other stakeholders, in such manner as shall be prescribed.”

“27. (3) Upon the declaration of any area in terms of section 26, the Authority may exercise, perform and discharge in relation to any such Area declared in terms of section 26 the powers, duties or functions conferred or imposed on or assigned to, any person, body or authority by any relevant written law, in so far as the same is necessary, in consultation with the relevant authorities specified in the aforesaid written laws and to the extent agreed.”

For all intents and purposes, no such consultation has taken place in the North or East.

Antiquities Act No. 24 of 1998

Let us look at the relevant sections as below:

“(1) The Director-General of Archaeology may-
(a) with the approval of the Land Commissioner, or
(b) if approval is refused by the Land Commissioner,

with the approval of the Minister to whom the subject of State lands is for the time being assigned, declare, by notification published in the Gazette, any specified area of that land to be an archaeological reserve for the purposes of this Ordinance.

(2) Any area of State land reserved for archaeological purposes before the date on which this Ordinance comes into operation, whether by notification in the Gazette or otherwise, shall be deemed to be an archaeological reserve declared under the provisions of this section.”

Archaeological Sites of National Importance Act No. 16 of 1900

The sections that relate to land are given below:

“2. (1) The archaeological activities, sites and remains described in the First Schedule to this Act are hereby declared, for the purpose of the Ninth Schedule to the Constitution, to be of national importance.

(2) The Minister may, by Order published in the Gazette, declare any other archaeological activities, sites and remains not described in the First Schedule to this Act, or any antiquities to be of national importance.”

These Acts have been enacted after the 13th Amendment to the Constitution came into force. Not only any piece of land, but even any activity such as excavation is now considered to be an archaeological site of national importance! As of late, many areas in the East have been declared (national) archeological sites and barbed wired. The services of the armed forces are used to protect them. Or, in the alternative, there are signs erected to say that the area has been land-mined.

In Trincomalee the Kanniya Hot Wells have been declared an archaeological reserve and taken over from the local authority by the Archaeological Department. Permission to rebuild the damaged Hindu temple within the premises was refused. Permission was however granted for the building of a new Buddhist temple within the reserve.

In Trincomalee town, adjoining the St. Mary’s College, an area which was earmarked for the use of the school and where four ficus religiosa trees stand forming a quadrilateral has been declared an archaeological site and barbed wired. The ficus religiosa trees are considered holy both by the Hindus and Buddhists. But should religious fanaticism go that extent so to protect trees forming triangles, quadrilaterals or pentagons?

Tamil Representation in Parliament

State sponsored colonization of state lands in the North and East were resorted to by successive governments of Sri Lanka since independence.

The Senanayake Samudra Scheme in the Gal Oya Basin, the Allai Extension Scheme in the Mahaweli Basin, the Kantalai Scheme in the Per Aru Basin, the Mora Wewa (Mudalikulam) Scheme in the Pan Aru Basin and Pavatkulam in the Aruvi Aru Basin are some of the earlier colonization schemes in the North and East targeted for Sinhalese colonisations. In every one of these schemes, thousands  of Sinhalese families were settled.

By the 1960s, the reduction in Parliamentary representation due to the above colonization schemes in the East and North began to show. At the 1947 elections, out of 95 elected members, 15 was apportioned for the Sri Lankan Tamils in the North and East. Of this 15, the Tamils got 11 members and the Muslims got 4 members elected. There were no Sinhalese members elected. At the 1970 election, out of 151 members to be elected to Parliament, the Northern and Eastern Provinces were assigned 24 members. Of these, 19 Tamils, 4 Muslims and 1 Sinhalese were elected.  These two elections were on the First Past the Post basis.

Despite the 1983 situation, Sinhala colonisations went ahead unabated  in Mahadivulwewa (Periyavilankulam) in Trincomalee District and the Mahaweli systems. In 1983, following the antiTamil riots, the Mahaweli Ministry planted 3364 Sinhalese families in an area in Mullaitivu District, which was rechristened Weli Oya. The area had earlier been declared as System L under the Mahaweli Development Plan. This could  have been  considered as a Mahaweli System only if Mahaweli water flows into that area or is likely to flow into that area. Mahaweli water could reach the area only through the North Central Province (NCP) canal, but that is a very remote possibility. Weli Oya area with a 100% Sinhalese population in the Mullaitivu District has now been declared as a DS Division. The path is now clear for more state sponsored colonizations or illegal settlements in the Division. Old villages in the area have now been renamed, Sampathnuwara, Janakapura and so on.

In the Trincomalee and Amparai Districts, separate Divisional Secretary Divisions have been established for the benefit of the settled Sinhalese as well as to facilitate  further Sinhalese settlements. In the Trincomalee District, Seruvila, Kantalai, Morawewa, Gomarankadawela and Padavi Siripura have thus been established. Similarly, in the Amparai District, Amparai, Damana, Uhana, Padiyatalawa, Maha Oya, Lahugala and Dehiyattakandiya DS Divisions have been established.

In the 1994 election held under the Proportional Representation basis, out of a total of 196 members elected to Parliament, 31 members were assigned to the Northern and Eastern Provinces. Out of these,  17 Tamils, 8 Muslims and 6 Sinhalese were elected. The loss of Sri Lankan Tamil representation in the North and East were not made up anywhere else in the country.

Significance of the B-C Pact And The D-C Pact

State sponsored colonisations were rightly seen by S.J.V. Chelvanayakam as a political weapon in the hands of the Sri Lankan governments aimed at changing the demography of the Northern and Eastern Provinces. The change of demography  resulted in a reduction in Tamil representation in Parliament, and consequently, reduced political influence.

It was this apprehension that prompted Chelvanayakam to sign the Bandaranaike-Chelvanayakam Pact in 1957.  To him, putting a halt to Sinhalaese colonisations in the North and East was far more important than clamouring for parity of status for Tamil as an official language. The relevant paragraphs in the B-C Pact  reads as:

“5. Parliament is to delegate powers and to specify them in the Act. It was agreed that regional councils should have powers over specified subjects including agriculture, cooperatives, lands and land development, colonization, education, health, industries,  fisheries, housing,  social services, electricity, water schemes and roads. Requisite definition of powers will be made in the Bill.

6. It was agreed that in the matter of colonisation schemes the powers of the regional councils shall include the power to select allottees to whom lands within their area of authority shall be alienated and also power to select personnel to be  employed  for work on such schemes. The position regarding the area at present administered by the Gal Oya Board in his matter requires consideration.”

In 1965, Chelvanayakam was even prepared to accept District Councils provided  that powers over land was given to the District Councils. The relevant paragraphs in the D-C Pact reads as follows:

“(4) The Land Development Ordinance will be amended to provide that citizens of Ceylon be entitled to the allotment of land under the Ordinance. Mr. Senanayake further agreed that on the granting of land under colonisation schemes, the following priorities be observed in the Northern and Eastern Provinces:

(a) Land in the Northern and Eastern Provinces should in the first instance be granted to landless persons in the District;

(b) Secondly, to Tamil-speaking persons in the Northern and Eastern Provinces; and

(c ) Thirdly, to other citizens, preference being given to Tamil citizens in the rest of the Island.”

Why Is Land a Fundamental Issue to the Tamils?

If one could understand why the Tamils had given so much importance to Land, and why state sponsored colonisations and state-backed illegal settlements, which subsequently get regularised is anathema to the Tamils, it should not be difficult to understand why the TULF/TNA leadership, after 25 years of prevarication, wants to cling on to even the meagre powers given to Provincial Councils in the 13th Amendment to the Constitution.

Land has been the factor that ensured respectable representation in Parliament to the Tamils, and if that representation is weakened even further, the very existence of the Tamils as a people in Sri Lanka would become a question mark.

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The author was educated at the Royal College, Colombo and at the University of Ceylon, Colombo. He obtained a First Class degree in Civil Engineering. Later, he obtained a PhD from the University of Waterloo, Canada, having won a Commonwealth Scholarship in 1969. He had been a Chartered Engineer since 1968. The Institution of Engineers (Sri Lanka) had conferred on him Honorary Life Fellowship.

He served the Irrigation Department as an Irrigation Engineer, Chief Engineer and Deputy Director and the North-East Provincial Council as the Secretary to the Chief Minister. During his tenure in the Irrigation Department he also served as consultant to the Mahaweli Authority.

After a spell outside Sri Lanka, he served as a Member of Parliament for a very short period in 2000 prior to which he had taken part in the final discussions on the 2000 Constitution Bill which was presented to Parliament by President Chandrika Bandaranaike Kumaratunga. President Mahinda Rajapakse appointed him as a member of the Experts Panel to advise the APRC headed by Prof. Tissa Vitarana. In 2008, he was appointed as Senior Advisor to the Chief Minister of the Eastern Province.

He heads a recognised political party, namely, the Akhila Ilankai Tamils Party, which is not a constituent of the Tamil National Alliance.

  • J Fernando

    The stealing of traditional lands has been happening for at least 2 centuries, first the British stole lands from the hill country and since independence steal from our Tamil brothers, first in the east and now in the north !

    • Sarath Fernando

      Just curious. Can anyone provide some idea on how much of land in Hambantota was within Rajapaksa household before they came to power, and how much is it now?