Mekong Watch Comments on JICA Examiner’s report on Thilawa SEZ

In Nov 2014, the JICA Examiner found that JICA was “not in non-compliance” with its safeguard policy, the Guidelines for Environmental and Social Considerations. The Examiner did, however, make many important recommendations to improve project implementation.

The Examiner’s report contains a summary of the claims made by the Requesters for investigation, JICA’s response to those claims, and the findings of the Examiner.

We are puzzled how the Examiner could find a project that required so many fundamental recommendations to be in compliance with the Guidelines, but nonetheless would like to emphasize the need for sincere and diligent efforts by JICA to remedy the problems affected people are facing.

Mekong Watch submitted a document to JICA’s Examiner as a follow-up to the investigation results in December 2014.  Below are the main points in English.

To see the complete report by the Examiner, please download from JICA’s website.

Mekong Watch’s overall comments to the Examiner were as follows:

i) Insufficient time allocated for local information collection: The Examiner spent insufficient time collecting information from project affected people. Though the Examiner did visit the relocation site, only 6 hours were spent talking with local people. Two hours were spent talking to households recommended by JICA.  The remaining 4 hours with random households. If the Examiner did not have time himself, he should have found other ways to independently gather information.

ii) Failure to examine content/quality of documents/meetings: The Examiner often concludes that JICA was “not in non-compliance” because it confirmed the existence of certain documents or that certain meetings were held. The Examiner failed, however, to examine the essential content of the documents or meeting processes to see if they uphold standards of transparency and accountability that the Guidelines are supposed to guarantee. Just because certain people met does not mean the content and process are sufficient.

iii) Contradictions: The Examiner’s conclusion of “not-in-noncompliance” contradicts some of his findings and recommendations. If JICA was indeed in compliance, there should be no need to point out certain outstanding problems and make the recommendations for improvement that he was compelled to make.

iv) Question of independence and reliability:  The above observation (iii) brings into question the Examiner’s degree of independence and the trustworthiness of the Objection mechanism. The Requesters who filed the Objection raised many issues that they believed to be violations of JICA’s Guidelines. The Examiner did not acknowledge even one violation (in spite of writing many recommendations for improvement). If project affected people feel that they cannot trust the mechanism, it will be useless as a measure to uphold international standards in JICA supported projects. JICA should re-examine the system and implement necessary reforms.

v) Lack of sensitivity to Requesters: JICA sent notifications and the Examiner’s final report to the Requesters only in English, a language that none of the Requesters can read or speak. The report should have been provided to them in language they understand.

Detailed comments are as follows:

Regarding Requesters’ claims of concrete damage due to resettlement

Requesters’ Claim:  Loss of farmland or access to farmland is negatively affecting livelihood and living standards
Examiners’ Findings: People are indeed suffering negative consequences of being unable to farm. They are, however, to be compensated and alternative means of livelihood are to be arranged.  People relocated in 1997 signed official agreements and those documents still exist.
Mekong Watch Comments:  a) The problem is that an effective Income Restoration Plan (IRP) has not been implemented. Many relocated people do not have sufficient means to make a living.  The Examiner should have confirmed whether JICA’s understanding of the situation was sufficient or not.  b) The Examiner fails to understand that relocation in 1997 was done under a military junta. The Examiner should have held a hearing with affected people regarding their understanding of the explanations provided by the Burmese government.

Requesters’ Claim: Loss of livelihood opportunities 
Examiner’s Findings:  There are still families who do not have sustainable  sources of income/means of livelihood. The Examiner does not deny that project affected people (PAPs) are being negatively affected in this regard.
Mekong Watch Comments:  a) According to the results of a survey conducted by Physicians for Human Rights (PHR) during a period overlapping the Examiner’s investigation, most PAPs had not read the Resettlement Work Plan (RWP). JICA states that the RWP includes measures for livelihood restoration. The Examiner should have confirmed whether these measures had any practical significance.    b) JICA claims that 29 households found employment. The Examiner should have confirmed not only the households without employment, but should have also verified the incomes of households with employment were sustainable.

Requester’s Claim: Impoverishment
Examiner’s Findings:  
It is necessary to carefully examine the causes of debt when investigating whether or not damage was incurred. Even if impoverishment accelerated, it cannot necessarily to attributed to resettlement (some PAPs bought motorbikes or appliances).  However, PAPs anxiety about living off of compensation without sustainable income is understandable and this situation should be resolved as soon as possible.
Mekong Watch’s Comments:   a)  The Examiner should have confirmed JICA’s lack of understanding that PAPs who signed compensation agreements were not necessarily satisfied with the content or fairness of those agreements. b) Some PAPs purchased motorbikes as a business endeavor (bike taxi). The Examiner should have held more detailed hearings.  c)  Some PAPs were already in debt at the time of the Examiner’s investigation. People told the Examiner that they had no need to borrow money prior to resettlement, but due to insufficient compensation/income restoration, they had to borrow to meet daily needs. The Examiner should have reflected this in his conclusion.  d)  According to PHR’s report, average household monthly income dropped from 327,000 kyat prior to resettlement to 71,000 kyat after resettlement.  e)  Requesters claim loss of income due to the blocking of canals used to irrigate farms in the 2,000 hectare area. The Examiner completely failed to address this.

Requesters’ Claim:  Impact on opportunities for education
Examiner’s Findings:  All children are currently able to go to school, so these issues have been resolved. Support should be provided to alleviate anxiety about changing schools and continuing education.
Mekong Watch’s Comments:  a) The Examiner should have found that JICA failed to recognize that some people were not consulted about how much support they needed for school commuting fees.  Some required more than 400 kyat.  b)  Though all children are now able to go to school, the Examiner should have investigated what the situation was at the time of the request for investigation (Nov 2013-June 2014).

Requesters’ Claim: Substandard Housing and Basic Infrastructure
Examiner’s Findings: 
No PAPs are suffering from loss of housing because they were either provided with a government constructed house or 2.5 million kyat to build a house themselves. Those who moved to the resettlement site prior to completion of their houses signed agreements saying they were voluntarily moving. During the limited time of the investigation, no technical investigation was possible, but no structural problems with houses or drainage were noticed.
Mekong Watch’s Comments:  a) Requesters pointed out to the Examiner that houses were lacking kitchens and space for family alters. b) Due to structural flaws, plots for houses were often at a level lower than drainage exits. To address this, some residents spent several hundred thousand kyat of their own money to raise the level of their plots. c) After resettlement agreements were distributed in August 2014, it was found that there were multiple versions of differing content. The Examiner only saw the template. TSDG requested an explanation from the authorities regarding the variation in content but received no response. Some people may have been resettled prior to signing an agreement. The Examiner should have investigated this.

Requesters’ Claim:  Lack of Access to Clean Water
Examiner’s Findings: 
Inconveniently located pumps inhibited access, leading to deteriorating water quality. This may have been due to insufficient consultation with residents. But authorities responded by trying to repair or build new pumps, with advice from JICA. Water quality is important and this issue should continue to be monitored.
Mekong Watch’s Comments:  According the the PHR report, the water quality at the resettlement site is of lower standard that that set by UNHCR for refugee camps. TSDG took water samples to the Ministry of Health and all water sources were found to be “bacteriologically unacceptable” (i.e. inappropriate for human consumption).

Regarding Points that Requesters Felt Violated JICA’s Guidelines

Section 1.1 (paragraph 3) Responsibility to ensure accountability
Requesters’ Claim: 
RWP and EIA did not meet standards required by the Guidelines; though JICA is responsible to ensure that the Yangon Regional Government is accountable to affected people, JICA deflected requests by local people for meetings, saying they should speak to local authorities.
Examiner’s Findings: JICA dispatched experts to the resettlement site and encouraged the Myanmar Government to comply with the Guidelines, and therefore, JICA was not non-compliant with the Guidelines.
Mekong Watch Comments:  The point is not whether or not experts were dispatched, or if efforts were made the contact the Myanmar Government. The Examiner should have examined the content of the experts’ work and the precise content of what JICA encouraged the government to do (i.e. did they address stakeholder participation, did they ensure that transparency and accountability was actually upheld in reality, not just on paper).

Section 1.4 Basic Principles (Consideration #4: JICA asks stakeholders for their participation)
Requesters’ Claim:  JICA failed to respond to affected people’s requests for explanations and meetings. JICA made a decision to invest before responding to local people.
Examiner’s Findings:  JICA talked to local people by phone. If JICA gave the impression of being unresponsive, they should have written a letter in addition.
Mekong Watch Comments:  a)  JICA’s response to a letter sent on Oct 29th did not come until Feb 3rd.  JICA responded to an April 7th letter on April 28th, after making its official decision to invest in the Thilawa SEZ. The Examiner should have investigated into the content of the phone calls to see if they were in fact sufficient responses to the local people. b) JICA’s phone call on May 28th proposing consultation came after TSDG decided to file an official complaint and was discussing appointment dates with the Examiner.  c) TSDG contacted JICA because they were unable to negotiate with the Burmese government. JICA’s responses only telling TSDG to negotiate with the Burmese government was evasive and did not resolve any problems. The Examiner should have verified whether JICA’s  understanding of the situation and their response was sufficient or not.

Section 1.5  Responsibilities of JICA (to confirm government’s compliance with environmental and social considerations)
Requester’s Claim: Inadequate EIA and RWP. Insufficient support and confirmation by JICA.
Examiner’s Findings:  JICA dispatched experts to monitor the RWP preparation process and gave advice to the Myanmar government. JICA confirmed that the EIA and RWP met required standards. There was insufficient time for discussions with PAPs, but the IRP outline was included in the RWP, and the RWP was completed before resettlement. Therefore, JICA was not non-compliant.
Mekong Watch Comments:  The RWP was completed after many people had already signed agreements and had begun receiving compensation (Oct 25). Public comment for the draft RWP was Nov 4-22, 2013.  Though certain formalities appear to have been implemented, the Examiner should have investigated their actual content. Almost none of the resettled people had read the RWP prior to resettlement.

Section 2.5 Concern about Social Environment and Human Rights
Requesters’ Claim: 
Some families felt threatened into signing compensation and resettlement agreements, and JICA should have taken this into consideration.
Examiner’s Findings: Affected people may have felt intimidated into signing resettlement/compensation agreements, as words like “court” and “law suits” were used. But meetings minutes show no indication of actual threats. People also asked questions during consultations, indicating an atmosphere that allowed people to speak their minds. JICA made efforts to understand the situation. JICA may not have been able to give care to the psychological pressures of local people, there is no evidence to confirm violation of the Guidelines.
Mekong Watch Comments: a) According to the PHP report, 93% of the 29 households interviewed felt anxiety or fear in regard to refusing to resettle. It is necessary to give special consideration to the social/historical background of the decades of repression under a brutal military regime.  b) The Examiner should have confirmed not only if experts were following developments and speaking to Burmese officials, but should have confirmed whether the content of the studies and discussions were appropriate and actually took into consideration the relevant human rights conditions. c) During the Examiner’s short investigation, he received information from people who said they had been forced to relocate. He should have investigated into why JICA and experts dispatched by JICA had no information about this.

Appendix 1 Involuntary Resettlement (Section 7 Item 2. JICA’s obligation to ensure that resettled people receive support in a timely manner.)
Requesters’ Claim: 
The haste with which people were resettled led to people moving before sufficient infrastructure and income plans were prepared.
Examiner’s Findings:  Four RWP consultations were held prior to completion of the final RWP, and resettlement of most people commenced after the final RWP was published. Those who moved earlier still moved after the last draft of the RWP was available for comment. They also signed agreements acknowledging that they were voluntarily moving into incomplete conditions. JICA could have encouraged the government to spend more time explaining the importance of alternative income (IRP) so that resettled people would not focus only on the amount of compensation, but this is not a requirement under the Guidelines.
Mekong Watch Comments:  a) Resettlement agreements mentioned by JICA and the Examiner were distributed in August 2014, and it was found that there were multiple versions. Some signed without understanding the content. JICA confirmed only the template, and it is possible that some households were relocated without having signed the agreement. b) Public comment for the draft RWP and its completion happened after many people had already signed a resettlement agreement and/or had begun receiving compensation (Oct 25). Almost none of those resettled had read the RWP prior to resettlement. The Examiner should have investigated beyond formalities and looked into whether the formalities had any actual bearing on reality.  c) According to the PHR report, most residents did not know that the results of the Social and Economic Survey done by authorities was available to be read.  d)  The Examiner should have investigated not only if the DMS was done, but whether the way it was done was appropriate. e) Residents claim that they did not know how compensation for crops and livestock had been calculated.  They explained this at consultations held after the official complaint to JICA was filed.  f) The Examiner should have verified if access to information was sufficient, and if people were in actual agreement with the documents they signed, especially considering the historical context of coercion in Burma.

Appendix 1 Involuntary Resettlement (Section 7 Items 3 and 4. Public participation in planning, implementation and monitoring; timely information disclosure and dissemination.)
Requesters’ Claim:
Many people resettled for the Thilawa SEZ were unable to read and therefore unable to understand the resettlement agreements. Few were given copies of the agreements. Villagers were not given open opportunities to express concerns at consultations. JICA did not ensure that displaced people were able to meaningfully participate in developing and implementing, and monitoring resettlement plans.
Examiner’s Findings: The resettlement documents are difficult to understand, so people need assistance to read and understand. JICA received reports from authorities and experts that such assistance was provided. There is no dispute over whether or not people signed the agreements. Some people did not receive copies of the agreements, but they are more concerned with the breakdown of compensation anyway. They should have been able to understand that part of the agreement. If PAPs feel they did not have enough opportunity to voice their concerns, it was because of insufficient time (2 months). But this does not constitute violation of the Guidelines.
Mekong Watch comments: a)  The Examiner should have looked not only at whether residents were literate or not, but verified how signatures were collected (e.g. people say they were told where to sign and not given time to read the documents).  b) The Examiner should have verified not only that certain negotiations took place, but should have examined the process and content, keeping in mind the imbalance in power between authorities and local people.  c) Multiple versions of the resettlement agreement were distributed in August 2014. Though TSDG requested an explanation for the different content, no explanation was provided. There are also residents who have refused to accept the agreement. There are households who signed in August 2014 without understanding the content.

Appendix 1 Involuntary Resettlement (Section 7 Item 2. JICA’s responsibility to provide compensation for lost land. )
Requesters’ Claim:
JICA failed to assess if land was appropriately acquired or not. Residents did not receive appropriate compensation for land.
Examiner’s Findings: a) JICA received an explanation from the Myanmar government that the land in the Class A area belonged to the government due to expropriation of the land in 1997. The government paid twice the market value in compensation and also showed JICA copies of signed agreements from 1997.  b) After the 1997 land expropriation, people living in or cultivating land in Class A signed statements saying they would relocate without demanding compensation once development started. JICA obtained and confirmed a sample form of such document. c) JICA was able to confirm reasonable compliance with the Guidelines in regard to past land expropriation and did not find non-compliance with the Guidelines.
Mekong Watch Comment: There was insufficient understanding of and consideration given to the fact that signatures by residents in 1997 were collected under very oppressive conditions under a brutal military regime. The Examiner should have verified the affected people’s understanding of the notices given to them by the government and conducted hearings with legal experts for their interpretations of the law.

Appendix 1 Involuntary Resettlement (Section 7 Item 2. JICA’s responsibility to improve or at least restore displaced persons standard of living, income opportunities and production levels.).
Requesters’ Claim:
Thilawa residents did not receive compensation for land. Families whose livelihood depended on land should be given replacement land rather than have to shift to income-based livelihoods. JICA did not receive proof that it was impossible to provide replacement land.
Examiner’s findings: a) Four out of 19 households that were engaged in agriculture prior to resettlement had stable employment. There are reports of people who lost the will to work and are depending on temporary funds.  b) Time is required to motivate people to work and find stable employment. It is important to start and continue job training, create a new environment in which people will feel motivated and increase the numbers of people who are successfully employed in order to ease anxiety. This will also help to create a calmer environment for the community as a whole. c) In the outline of the RWP (Burmese and English versions), the steps for livelihood restoration and comments on a complaints mechanism were included, so it cannot be said that there was non-compliance with the Guidelines.
Mekong Watch Comments: a) The RWP outline was distributed on the day of consultation (21 Sep 2013), which is insufficient time to consider the content. People were given until 30 Sep to submit comments, but decisions were made in an nontransparent manner, and discussions were held with only certain groups/individuals. Prior to the deadline to submit comments, authorities already started collecting signatures for resettlement agreements and some residents claim use of threatening language. This did not provide an environment for sufficient discussion of the content.  b) Many residents had already signed the resettlement agreement or had already started receiving compensation prior to the period for public comment on the draft RWP (4-22 Nov 2013). Most people had not read the RWP before being relocated.  c) It is necessary to investigate not only if the RWP drafting process is appropriate in form, but also in content.  d)  It is necessary to examine not only if JICA spoke with the Burmese government, but investigated the content.  e)  It is insufficient to examine the existence of a complaints mechanism and livelihood restoration measures, but the content and whether they actually function.

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