{"id":108162,"date":"2020-10-28T18:19:14","date_gmt":"2020-10-29T01:19:14","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=108162"},"modified":"2020-10-28T18:19:14","modified_gmt":"2020-10-29T01:19:14","slug":"bim-saviya-does-it-serve-sri-lanka-or-a-foreign-interest","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/10\/28\/bim-saviya-does-it-serve-sri-lanka-or-a-foreign-interest\/","title":{"rendered":"Bim Saviya \u2013 Does it serve Sri Lanka or a foreign interest?"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

The test of the success of this title\nregistration system (Bim Saviya) has to be judged by what has been achieved\nsince the time the Act was introduced in 1998. Implementation began in 2007. Information\navailable to date says <\/em><\/strong>so far only 0.72 million blocks have been registered in the\nBim Saviya Register out of 12 Million blocks of land. This registration is less\nthan 5% of the total number of blocks identified. It has taken 12 years to\nachieve this. How long will it take to complete it?<\/em><\/strong><\/p>\n\n\n\n

Much has been written and is being written about the Bim Saviya or\nthe land registration system based on the Australian Torrens title law. While there may be issues relating to land titles including fraudulent\ntitles, for all intents and purposes, Bim Saviya is more about land commercialism\nrather than about land productivity or land used or needed for dwelling\npurposes. Bim Saviya registration process has failed as it is an impractical\none that requires officials to visit all land blocks, at least once if not more\nthan that. <\/p>\n\n\n\n

Sri Lankans may\nnot be aware that changes to the land registration system in Sri Lanka was\npushed by the World Bank as far back as the 1970s, and possibly even before.\nThanks to legal luminaries like Hon Justice A.R.B. Amerasinghe, and erudite and upright politicians like Mr T B Ilangaratne, who\nas the subject cabinet minister vetoed the revision of land registration pushed\nby the World bank, these intentions never translated to realities. It is\nunderstood that a World bank delegation revisited this in 1994, and managed to\nget a Parliamentary Act passed in 1998 in a hurry and without debate. Thus Bim\nSaviya was born. Implementation had begun in 2007. It is difficult to come to\nterms with a notion that the World Bank and associated foreign agencies were\ninterested in land registration in Sri Lanka for the sole benefit of Sri Lanka.\nThese agencies, as their countries are wont to do, undertakes projects in other\ncountries primarily to seek an advantage for themselves. The World Bank aids and\nabets powerful countries to establish a particular world order of their design\nby advocating projects that supports such a design.<\/p>\n\n\n\n

Privatisation\nof State land and making available such privatised land and land that is\nalready privately owned, for sale to foreign entities has been such a strategic\ndesign so that in turn, the political fortunes of a country could well and\ntruly be tied to such a design.<\/p>\n\n\n\n

This Act goes\nagainst the grain of Sri Lankan culture and its community understandings. It\nhas no way of dealing with what is very traditionally Sri Lankan like anda goviya\u201d\nor tenant farmer or sharecroppers, shared water resources and land paths. This\nis probably why Bim Saviya has failed.<\/p>\n\n\n\n

There is a\nfundamental concept that should govern land and land management. Land should\nnot be regarded as a tool for man to exploit and to trade for profit. Land is\nthe composite of life itself. Diminish land and the consequence is that it\ndiminishes life itself. Land is the whole, not part of the whole, human beings\nare only part of the whole along with other animal and plant life, and natural\nresources.<\/p>\n\n\n\n

This was\nrecognised by ancient civilisations, the indigenous people (or Veddah\u2019s) of Sri\nLanka, and by the indigenous people of Australia and in other countries\nincluding the Native Americans. They did not destroy land for profit, they\nnurtured it for survival. Those who invaded Australia destroyed much of this\nvaluable land and introduced their Torrens titles replacing the concept of\ncommunity guardianship of land. The very same Torrens titles are now attempting\nto colonise and destroy the traditions of Sri Lanka.<\/p>\n\n\n\n

It is\ninteresting to note the turning point in land titles in Australia. The\nfollowing is quoted from the Sydney University web site (https:\/\/www.sydney.edu.au\/news-opinion\/news\/2017\/06\/02\/five-things-you-should-know-about-the-mabo-decision.html#:~:text=On%203%20June%201992%2C%20the,and%20can%20still%20exist%20today).<\/p>\n\n\n\n

Quote\u201d On 3 June 1992, the High Court of Australia decided that\nterra nullius should not have been applied to Australia. This decision \u2013 known\nas the Mabo decision \u2013 recognised that Aboriginal and Torres Strait Islander\npeoples have rights to the land \u2013 rights that existed before the British\narrived and can still exist today. <\/p>\n\n\n\n

The Mabo decision was a turning point for the recognition of\nAboriginal and Torres Strait Islander peoples\u2019 rights, because it acknowledged\ntheir unique connection with the land. It also led to the Australian Parliament\npassing the Native Title Act in 1993.<\/p>\n\n\n\n

1. Terra nullius nullified<\/em><\/strong><\/em><\/h4>\n\n\n\n

Until 1992, land laws claimed that Australia was terra nullius\nor \u2018land belonging to no one\u2019. Effectively, these laws denied the fact that\nIndigenous peoples had prior occupation and connection to the land.<\/em><\/p>\n\n\n\n

2. The man behind the fight<\/em><\/strong><\/em><\/h4>\n\n\n\n

The Mabo decision was named after Torres Strait Islander Eddie\n\u2018Koiki\u2019 Mabo who led the fight to change land laws to recognise Indigenous\nconnection and traditional ownership of land in Australia. He worked on the\nMabo case for 10 years, but unfortunately passed away just months before he\ncould learn the High Court\u2019s decision on his legal battle.<\/em><\/p>\n\n\n\n

3. Our alumni played a role<\/em><\/strong><\/em><\/h4>\n\n\n\n

Three University of Sydney law alumni were members of the High\nCourt of Australia which made this decision: Sir William Deane, AC, KBE, QC,\nMary Gaudron, QC (first female Justice of the High Court of Australia) and Sir\nAnthony Mason, AC, KBE, QC, who was Chief Justice at the time.<\/em><\/p>\n\n\n\n

4. Creation of the Native Title Act<\/em><\/strong><\/em><\/h4>\n\n\n\n

The 1992 Mabo decision led to the Native Title Act (1993) which\ncreated a framework that recognises Aboriginal and Torres Strait Islander\npeoples have rights to, and interests in, certain land because of their\ntraditional laws and customs. It allows access to land for living, traditional\npurposes, hunting or fishing and\/or to teach laws and customs on the land.<\/em><\/p>\n\n\n\n

5. Recognition of land ownership today<\/em><\/strong><\/em><\/h4>\n\n\n\n

Today,\nnative title has been recognised over more than one million square kilometres\nof Australian land and water (approximately 15% of Australian territorial land\nand waters). There are currently 629 registered Indigenous Land Use Agreements\n\u2013 a voluntary agreement between a native title group and others about the use\nof land and waters \u2013 in place -unquote<\/em><\/p>\n\n\n\n

Sri Lankans\nshould note that this historic decision paved the way for recognising what was\ntermed a turning point for the\nrecognition of Aboriginal and Torres Strait Islander peoples\u2019 rights, because\nit acknowledged their unique connection with the land\u201d. Sri Lankans should also\nnote that it is another Australian land title termed Torrens Title\u201d that was\nintroduced to Sri Lanka via Bim Saviya that did not recognise the traditional\nand unique connection with land\u201d<\/p>\n\n\n\n

Sri Lankans,\nbarring a few concerned individuals, probably have not questioned this\ndichotomy, and how a land registration system that does not recognise what is\ntruly Sri Lankan, had been introduced to replace what is Sri Lankan.<\/p>\n\n\n\n

Any type of law\nor registration system relating to land should have regard to the history,\nculture and traditions of Sri Lanka, and not be based on a foreign system,\nparticularly where such a system had managed to destroy the life giving\nvitality of land. Any system that does not recognise the concept of community\nguardianship rather community ownership or individual ownership, should not be\nentertained in Sri Lanka. It is community guardianship of land that must\nunderpin land management in Sri Lanka<\/p>\n\n\n\n

Given the above\nconcept, the first and very basic point that should be considered by advocates\nof Bim Saviya is that land utilisation has no relationship or a dependency on\nland registration as envisaged by Bim Saviya. When it suits, many are quick to\nrecount that Sri Lanka had been referred to as the granary of the East during\nthe reign of King Parakramabahu I. There is no mention about land registration\nor titles or deeds during his time as having been pre requisites for the\nmassive food production during his time.<\/p>\n\n\n\n

Even in\ncontemporary times, agricultural land utilisation will be greater if there is\nwater, if there is a better distribution system for the produce, if there is\nvalue adding of agriculture products, and very fundamentally, if the grower\ngets a better price, consistently, for what is being grown. None of these have\nanything to do with land registration or titles or deeds.<\/p>\n\n\n\n

The ethos of\nBimsaviya to promote land utilisation is even against another fundamental\nprinciple that should be part of land management. The principle in land\nmanagement should be to use less and produce more, not the other way around. <\/p>\n\n\n\n

Agriculture\nresearch should underpin efficiency and effectiveness in land management where\nrather than opening land for more production, existing underperforming land\nholdings should be made more productive through agriculture research. The long\ngoal of land reform should be to increase forest cover by allowing some land to\nbecome forests and by stopping deforestation. \nBimsaviya is likely to increase deforestation and further decrease the\ncountry\u2019s forest cover. <\/p>\n\n\n\n

It is also well\nto remember that the future of the rubber industry as well as the tea industry\nhas question marks and large tracts that are currently planted with tea and\nrubber, especially rubber, may be available for other agriculture use. This has\nto be factored in any land management strategy as it would make additional land\nfor specific agriculture products unnecessary. These lands no doubt are already\nregistered under laws that existed before Bimsaviya and have titles and deeds.<\/p>\n\n\n\n

So in the first\ninstance Bim Saviya advocates should separate better land utilisation\u201d through\nthe Bim Saviya registration system as there is no relationship between the two.\n<\/p>\n\n\n\n

It could\naddress some of the other drawbacks mentioned as problems and examine whether\nBim Saviya is able to address these problems. Judging by the record on title\nregistration, clearly, Bim Saviya has not succeeded.<\/p>\n\n\n\n

Bim Saviya is\nnot an indigenous document as it is based on the Australian Torrens title law\nand introduced at the behest of the world bank, and supported with funds and\nmanpower by USAID. Amongst the outcomes stated, the following is worth special\nattention Secured and clean title ownership is a critical factor in property\nsales. Bim Saviya will enhance the higher potential in terms of market value of\nproperty. and also Its provides solution to land disputes\u201d. This statement\nappears to be real intent and motive of Bimsaviya as several other subsequent\ndevelopments seem to indicate, with the latest being the MCC agreement.<\/p>\n\n\n\n

As maximising\nutilisation of land has no link to a registration process as has been pointed\nout, the use of this erroneous outcome slogan has to be to provide\nopportunities for exploitation of land simply as a tradeable commodity. The\ncreation of a land bank, selling land to foreign nationals, removal of\nrestriction on extent of land ownership, seem to revoke the intents of land\nreform introduced since 1956 by SWRD Bandaranaike and Phillip Gunawardena and in\nthe seventies by Sirimavo Bandaranaike.<\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

The Land\nsettlement departments website states the following as the reasons why the Bim\nSaviya or the Registration of Title Act No.21 was introduced by the Parliament\nin 1998 (http:\/\/www.landsettledept.gov.lk).<\/h4>\n\n\n\n