Panj Amu River Basin Sector Project – Additional Financing (RRP AFG 48042-002)

Resettlement Framework

Project number: 48042-002 July 2020

Afghanistan: Panj-Amu River Basin Sector Project –

Additional Financing

Prepared by the National Water Affairs Regulation Authority for the Asian Development Bank. This resettlement framework is a document of the borrower. The views expressed herein do not necessarily represent those of ADB's Board of Directors, Management, or staff, and may be preliminary in nature. Your attention is directed to the “terms of use” section on ADB’s website. In preparing any country program or strategy, financing any project, or by making any designation of or reference to a particular territory or geographic area in this document, the Asian Development Bank does not intend to make any judgments as to the legal or other status of any territory or area.

Panj Amu River Basin Sector Project – Additional Financing (RRP AFG 48042-002)

NOTES

In this report, "$" refers to US dollars.

The Afghanistan calendar year commences on 21 March. The current year is 1399 from 21 March 2020 to 20 March 2021. In 2011, the Government of the Islamic Republic of Afghanistan (GoIRA) changed its fiscal year end to 20 December, three months before the end of the Afghan calendar year.

CURRENCY EQUIVALENTS

(as of 30 April 2020)

Currency unit – afghani (AF)

AF1.00 = $0.0141 $1.00 = AF70.68

ABBREVIATIONS

ABE – agro-business enterprise

ADB CPMO

– Asian Development Bank Central Program Management Office

DMC – developing member country

DMS – detailed measurement survey

LAL – Land Acquisition Law

LAR – land acquisition and resettlement

LARF – land acquisition and resettlement framework

LARP – land acquisition and resettlement plan

MAIL – Ministry of Agriculture, Irrigation and Livestock

MOF NWARA

– Ministry of Finance National Water Affairs Regulation Authority

PIO – Project Implementation Office

SPS – Safeguard Policy Statement

GLOSSARY

Affected Family/Household: All members of a family living under one roof and operating as a single social unit, who are affected by the project or its component. Affected Person: An individual affected by a project through land acquisition, relocation, loss of income, loss of livelihood, loss of employment or any other type of loss. Affected persons include: (a) persons whose place of living is affected; (b) farmers and nomads whose main form of livelihood is affected due to loss of trees, crops, grazing areas, forests, etc.; (c) persons whose businesses are affected and who may experience loss of their business income due to project activities; (d) persons who lose their employment and income due to project activities; and (e) persons who lose their community activities, contacts, and resources due to project impacts. This definition of affected person is, however, at variance with how ADB’s Safeguard Policy Statement

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(SPS, 2009) uses this term only in the context of consultations, disclosure, and grievance redress mechanism. Otherwise, ADB’s SPS uses the term ‘displaced person’. Nevertheless, affected person is retained because this is how ADB’s developing member country agencies understand and use this term. Compensation: Payment in cash or in kind as cost of replacement of their assets, resources, and income opportunities due to a project. All compensation is based on the principle of replacement cost, which is the method of valuing assets to replace the loss at current market rates. Replacement cost calculation comprises these elements: (i) fair market value; (ii) transaction costs; (iii) interest accrued (if any), (iv) transitional and restoration costs (if any); and (v) other applicable payments (if any). Cut-off Date: The date after which affected persons will not be considered eligible for receiving compensation. Under normal circumstances, the cut-off date is the date on which a detailed measurement survey will be commenced. Census: The process of enumeration of the affected people and their assets. Detailed Measurement Survey: The detailed inventory of losses that is completed after detailed design and after marking of project boundaries on the ground. Entitlement: Range of measures comprising compensation, income restoration, transfer assistance, income substitution, and any other resettlement assistance. Income Restoration: The process of re-establishing the affected persons' income to the level they enjoyed prior to relocation. Inventory of Losses: The pre-appraisal inventory of assets as a preliminary record of affected and/or lost assets. Jerib: Traditional unit of land measurement in Afghanistan. One Jerib is equal to 2000 square meter of land. 5 Jeribs make 1 hectare. Land Acquisition: The process whereby a person is compelled by a government agency to alienate all or part of the land the person owns or possesses to the ownership and possession of the government agency requiring the land for public purpose in return for compensation at replacement cost. Livelihood: The total package of earnings either in cash or kind a person generates for his/her survival. No-Objection-Certificate or Compliance Certificate: The certificate issued by an independent monitoring agency after conducting a comprehensive audit to ensure that affected persons have been paid compensation at replacement cost and their assets have been completely removed from the site to begin civil work. Non-titled: Those who have no recognizable rights or claims to the land that they are occupying. Also includes people using private or state land without permission, permit, or grant, i.e., those people without legal titles to land and/or structures occupied or used by them. ADB’s policy explicitly states that such people cannot be denied compensation for the land that they occupy.

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Poor: Those falling below the official national poverty line (equivalent to 2,350 calories per day). Based on Ministry of Rural Rehabilitation and Development study of Nationwide Risk and Poverty Assessment of Afghanistan, the latest national poverty line (2011–2012) has been determined as AF1,710 per person per month. The poor includes, amongst other factors, those falling below this line. Rehabilitation: Compensatory measures provided under the policy framework on involuntary resettlement other than payment of the replacement cost of acquired assets. Relocation: Physical relocation of an affected person from a pre-project location of his/her residence. Replacement Cost: means valuing assets to replace the loss at current market value and is the amount of cash or kind needed to replace an asset in its existing condition, without deduction of transaction costs or for any material salvaged. According to the SPS, the calculation of full replacement cost is based on the following elements: (i) fair market value; (ii) transaction costs; (iii) interest accrued, (iv) transitional and restoration costs; and (v) other applicable payments, if any. Resettlement: All the impacts associated with land acquisition including restriction of access to, or use of land, acquisition of assets, or impacts on income generation as a result of land acquisition. Shura: The formal institution established for coordination and implementation of all development activities including conflict resolution at the community level. Severely Affected Households/persons: refers to affected households who will (i) lose 10% or more than 10% of their total productive land and/or assets, (ii) have to relocate; and/or (iii) lose 10% or more than 10% of their total income sources due to the Project. Significant impact :200 persons (individuals) or more will experience major impacts, which are defined as; (i) being physically displaced from housing, or (ii) losing ten per cent or more of their productive assets (income generating). Vulnerable People defined for this project are those who are (i) the poorest, living close to or below the poverty line, (ii) without legal title to assets, (iii) households headed by women, (iv) the disabled or those unable to work, and (v) nomadic pastoralists without a town or village base.

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TABLE OF CONTENTS

A. Introduction ..................................................................................................................... 1

B. Objectives, Policy Framework, and Entitlements ............................................................. 3

1. Objectives of the Resettlement Planning Framework ................................................... 3

2. Afghanistan Laws on Land Acquisition and Resettlement ............................................ 4

3. ADB’s Safeguard Policy Statement (2009) ................................................................... 7

4. The Framework Principles ........................................................................................... 9

5. Comparison of Afghanistan’s Laws and Policies and ADB’s SPS 2009 .......................10

6. Remedial Measures to Bridge the Gap .......................................................................12

7. Affected/Displaced Persons, Cut-Off Date ..................................................................12

8. Compensation Eligibility and Entitlements ...................................................................13

C. Socio-Economic Information .........................................................................................15

1. Methodology ...............................................................................................................15

2. Valuation Methods of Affected Assets in Afghanistan .................................................16

3. Methods for Determining Replacement Costs .............................................................16

D. Consultation, Participation, and Disclosure ....................................................................17

E. Compensation, Income Restoration, and Relocation ......................................................17

F. Grievance Redress Mechanism ......................................................................................18

G. Institutional Arrangements and Implementation .............................................................18

1. Implementing Agencies ...............................................................................................19

2. Implementation Consultants ........................................................................................19

3. Local Governments .....................................................................................................19

4. Central Government ....................................................................................................19

5. Implementation Process..............................................................................................19

H. Budget and Financing ....................................................................................................20

I. Monitoring and Reporting ...............................................................................................22

APPENDICES Appendix 1: Involuntary Resettlement Screening and Rapid Social Assessment Checklist ....23 Appendix 2: Outline of a Project Information Brochure ...........................................................24 Appendix 3: Outline of an IR Due Diligence Report ................................................................25

LAND ACQUISITION AND RESETTLEMENT FRAMEWORK A. Introduction 1. The Panj-Amu Basin Project (a sector grant project) will increase agricultural productivity in the Panj-Amu River Basin through improving access and use of water at farm, scheme and river levels. The project will support the government strategy, which aims to increase per-capita income and reduce poverty among rural and pastoral communities. It will improve cropping intensities, irrigated areas, and crop yields on a command area of 74,500 hectares (ha) and as a result, increase annual farm incomes in the range $123-615 per household for over 55,000 households, and create approximately 11,000 full-time rural jobs per annum, with an estimated value of $10.4 million. The project will also improve food security, substitute imports for wheat, and improve self-sufficiency, and increase in exports of high-value products such as fruit and nuts. The project will also create more economic opportunities for agribusiness development, particularly for input suppliers and processors of and market intermediaries for agricultural products. 2. Afghanistan is considered highly vulnerable to the adverse effects of climate change.1 Current models indicate significant warming across all regions of Afghanistan, and a decrease in precipitation, particularly spring rainfall.2 The anticipated rise in average temperatures means that the average timing of the spring snow melt may occur earlier in the year, reducing water availability in the summer growing season. This may be counteracted to some extent by the decrease in spring rainfall, which is another important catalyst in the initiation of spring snow melt. The anticipated rise in average temperatures may result in a higher frequency of extreme storm events and resultant flooding. Also, higher temperatures and lower precipitation may increase the frequency, intensity, and duration of droughts.

3. Improving the irrigation infrastructure under the original project will protect irrigation schemes from flood events and will improve water distribution to downstream users, particularly in dry years. These interventions combined with bio-engineering support will address key climate change adaptation needs.3 It is a Government priority receiving strong support as outlined under the Afghanistan National Peace and Development Framework (ANPDF) 201720214 and detailed in the National Comprehensive Agricultural Development Program (CADP) 2016-2020,5 and the National Natural Resource Management Strategy, 20172021.6 The additional financing will expand the areas under development with sustainable watershed management systems, which is of critical importance to reduce soil loss and flood damage, improve water recharge and water conservation and storage, and tree and non-tree vegetation. In addition, the project interventions by generating community-based employment, income and livelihoods improvement will support core government priorities, as outlined in the government’s multi-sectoral response to the coronavirus epidemic, aimed at reducing the adverse social and economic impacts, through targeted national social, community and employment growth programs.

1 Rated as extreme in the Verisk Maplecroft Climate Change Vulnerability Index 2015. 2 M. Savage et al. 2009. Socio-Economic Impacts of Climate Change in Afghanistan: A Report to the Department for International Development. Stockholm: Stockholm Environment Institute. 3 ADB. 2016. Economics of Climate Change in Central and West Asia-Adaption component. Consultant’s Report. Manila (TA 8119-REG) 4 Government of Afghanistan, 2017. Afghanistan National Peace and Development Framework, 2017-2021 5 Government of Afghanistan, 2016. National Priority Program, Comprehensive Agricultural Development Program, 2016-2020. 6 Ministry of Agriculture and Livestock, 2017. National Natural Resource Management Strategy, 2017-2021. Kabul.

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4. In 2018 Afghanistan had a large-scale drought which affected approximately 1.4 million households on the northern areas of the country (including project areas) and this was followed in 2019 with severe flash floods. In responding to these climate impacts Government increased the focus and priority on water harvesting with a Presidential decree7 on improving water retention in watersheds, reducing run-off and improving household access to water, and in stabilizing slope land. As part of the national water harvesting program the National Water Affairs Regulatory Authority (NWARA),8 has identified and prepared pre-feasibility studies on 334 sub-projects with a large number being small to medium scale. Given the progress under project Output 3, Government requested ADB support to expand its watershed interventions in the Panj-Amu river basin. Such additional financing is consistent with ADB Afghanistan Country Partnership Strategy 20172021,9 and the country operation business plan (20202022).10

5. The Project’s intended impact, outcome, and output are:

Impact: increased per-capita income and reduced poverty among rural and pastoral communities.

Outcome: Increased agricultural productivity in the Panj-Amu river basin

Output:

Output 3: Watersheds properly managed and protected. The additional financing will expand scope of this output, with an incremental 77 sub-project watersheds to total an overall 103 sub-projects. The overall Output 3 indicator targets will also increase to reflect this expansion. These activities will restore an additional 13,760 ha of forestry and/or rangeland in the vicinity of 77 prioritized sub-projects, when combined with the original project 14,000 ha under development, the overall target will be 27,760 ha.

6. The additional financing is for Output 3 under the original project and it will support the Government’s priority request. It will scale up and expand the scope of activities to 77 sub-project watersheds in the Panj-Amu river basin.11 The additional financing activities will be completed within the current project period. The additional financing modality is appropriate12, as the original project sector modality, design and implementation arrangements are effective and efficient. It will meet the eligibility criteria as it is technically feasible, economically viable, and financially sound; is a high priority for the government; and is consistent with the project’s development objectives and the country partnership strategy. (footnote 9) 7. The project follows the fragile and conflict-affected states approach in that it includes: (i) sector financing, which allows flexibility in subproject selection and implementation given security concerns; (ii) streamlined project management office structure, which helps long-term programmatic sector interventions; and (iii) community participation in procurement and involvement of local elders throughout sub-project cycles, which minimizes interruptions of works contracts. The project readiness is enhanced by the use of advance contracting and financing of taxes and duties on eligible project expenditures.

7 Presidential Decree no. 237 dated 25 May 2019, supported though letter no. 962/835. 8 National Water Affairs Regulation Authority (NWARA) is undertaking the water sector functions and implementation role of the dissolved MEW (refer footnote 7), which was the implementing agency in the original project. 9 ADB. 2017. Afghanistan Country Partnership Strategy, 2017-202. Manila. 10 ADB. 2019. Afghanistan Country Operational Business Plan, 2020-2022. Manila. 11 A list of the candidate sub-projects is included in the list of linked documents in Appendix 2. 12 ADB. 2018. Operations Manual Policies and Procedures Section H5 Additional Financing.

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8. The project involuntary resettlement category is B. The additional financing will not require scale up or modification of the project. The project design details and areas, which may lead to significant impact will be excluded from the subproject/sections/packages. Land acquisition and resettlement framework (LARF) has been updated to guide the preparation of subproject land acquisition and resettlement plans (LARPs). Due diligence will be conducted in areas, where no land acquisition and resettlement (LAR) impacts are anticipated. Upon completion of such due diligence and confirmation of no LAR impact, a due diligence report will be prepared and disclosed upon ADB acceptance. LARPs will be prepared for LAR impacted areas, accepted by ADB and disclosed prior to contract award, with implementation prior to civil works commencement. Consultations with the affected communities will be ongoing at all stages of the project. 9. The LARF is prepared according to the provisions of ADB’s Safeguard Policy Statement, (SPS, 2009) in response to the procedural requirement for a sector loan and/or grant project, as well as the relevant laws and regulations of the country. The LARF is intended to guide the implementing agency in (i) conducting involuntary resettlement due diligence and screening of subprojects for potential involuntary resettlement impacts, including those from third-party users, and (ii) establishing a grievance redress and/or dispute resolution mechanism related to project implementation. 10. Sub-projects selected will be in the Panj-Amu river basin catchments, with high erosion, sediment and flood risk vulnerability, and potential water recharge, and in areas where the security environment enables work to be undertaken by local communities and contractors. Sub-projects will be excluded that involve land acquisition on private/ non-government land or which may lead to significant impact, or have an environmental impact and assessed as Category A. 11. Selection is based on catchment with high erosion, sediment and flood risk vulnerability, and potential water recharge, household (HH) reliance on rainwater for irrigation and livestock, investment scale (small dams less than 5 m, material access and maintenance) volume of water to be stored/ recharged, irrigation area with improved water reliability/ increased area; rehabilitated area (forestry/ NRM); number of HHs benefiting from the investment, and economic viability and financial returns.

12. The Ministry of Finance will be the executing agency and NWARA will be the implementing agency for the additional financing project. The selected subprojects will be screened by the implementing agency using the involuntary resettlement screening checklist for identifying subprojects for project assistance. A subproject investment report (that forms the basis of subproject approval) will include an I involuntary resettlement due diligence report. An outline of an involuntary resettlement due diligence report is included in Appendix 3. ADB will validate both the screening and due diligence findings. B. Objectives, Policy Framework, and Entitlements

1. Objectives of the Resettlement Planning Framework 13. According to ADB’s SPS and Operations Manual Section F1 (2013), a safeguard framework is required for the financial modalities of (i) sector lending, (ii) multitranche financing facility, (iii) emergency assistance and projects in fragile and conflict-affected situations, and (iv) project grants with subprojects or components prepared after the ADB Board approval. This project is being prepared as a sector modality, and the objectives of the policy framework for involuntary resettlement are to (i) avoid involuntary resettlement wherever possible, (ii) minimize

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resettlement impacts; (iii) to enhance, or at least restore, the livelihoods of all displaced persons; and (iv) to improve the standards of living of the displaced poor and other vulnerable groups. 14. A policy framework for involuntary resettlement for a sector modality is required to be in place from the outset of the planning process, which provides guidance on social safeguards screening and categorization, impact assessments, development of resettlement plans if land acquisition is required, public consultation and information disclosure, monitoring and reporting, and institutional arrangements (including budget and capacity development). It is noted that the subprojects of a sector loan and/or grant are not categorized for the impacts; instead, a sector loan and/or grant as a whole, is categorized based on the category of its most sensitive component in terms of involuntary resettlement impacts. This guidance is to be followed in the formulation of project components and subprojects that are prepared after the ADB Board approval of the project, including the criteria for component or subproject selection.

2. Afghanistan Laws on Land Acquisition and Resettlement 15. Generally, there are no laws or legislation in Afghanistan that specifically address matters related to involuntary resettlement. However, the Constitution of Afghanistan (2004) categorically recognizes the citizens’ right to own, use, and dispose of property. It also states that no one will be dispossessed of their property without the consent of a court of law and that alienation of private property for public purpose will be allowed only after payment of fair compensation to the owner. However, there is a Land Expropriation Law (2000) for regulating and managing acquisition of land, property, and other productive assets and for compensating the loss of assets. Furthermore; recently a comprehensive land policy was approved in 2017 by the President and Gazette on 15 April 2017 as “Law on Managing Land Affairs” (no. 1254) (LML) and Regulation on linear project Land acquisition (21 April 2018). 16. The most important of these are:

(i) The Law on Land Expropriation (8 October 2000); (ii) The Land Affairs Management Law (2008); (iii) Amendment to The Law of Land Expropriation (3 April 2005); and (iv) The Land Policy (2006). (v) Law on Managing Land Affairs (15 April 2017) (vi) linear project Land Acquisition Regulation (21 April 2018)

17. Collectively, these laws and policies provide a sound basis for acquisition of land for public purpose and for compensating land owners with legal titles. An account of the provisions is given below. 18. The Land Policy states that compensation for the expropriation of ownership or of rights on land be strictly defined by law. It is national policy that no law may permit arbitrary deprivation of property rights in the event government decides to implement a development project in the interest of public (Section 2.1.1). 19. The Land Affairs Management Law, Article 21, provides provisions for private land acquisition for public benefits according to the provision of law. According to this law, the land in question has to be settled and the installment of land should have been paid in full prior to expropriation. The procedure for land settlement is laid out that should be followed in respect of unsettled lands expected to be acquired.

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20. The Law on Land Expropriation and the Amended Land Acquisition Law have several clauses relating to private land acquisition for public interest purposes, such as the construction of public infrastructure or for the protection of lands with cultural and scientific values, land of higher agricultural productivity, large gardens and major vineyards which have economic importance, pursuant to permission by Sharia Law under the conditions mentioned below:

(i) The acquisition of a plot or portion of a plot which is needed for public purposes shall be carried out upon the approval of Council of Ministers, and with provision of prior and adequate compensation based on the market price of the land (Article 2).

(ii) The acquisition of a plot or part of it should not prevent the owner from using the rest of property or hamper its use. If this difficulty arises, the whole property will be acquired (Article 4).

(iii) The right of the owner or land user will be terminated three months prior to the start of civil works on the project and after the proper reimbursement to the owner or person using the land has been made. The termination of the right of the landlord or the person using the land should not affect their rights of collecting their last harvest from the land, except when there is emergency evacuation (Article 6).

(iv) In case of land acquisition, the following compensation shall be provided: price of the land, price of any residential houses, buildings and other structures located on the land; the price of any fruit bearing or ornamental trees or other trees set on the land (Article 8).

(v) The price of land shall be determined by the Council of Ministers, and the grade and location of the land shall be considered for determining the price of the land (Article 10).

(vi) The price of residential houses, buildings, and other structures belonging to the owner of the land should be determined in accordance with the Unified Table for Valuation (Article 11).

(vii) Upon payment of the construction materials costs, the owner will obtain materials free of charge (Amendment No.7, Article 1, Section 2).

(viii) A land plot of the same value shall be distributed to those whose house/land has been expropriated, or if requested so by the owner, another residential house or plots at the discretion of the ‘Amir’13 shall be put at his disposal, in accordance with the specified criteria (Article 13, Amendment Article 1, Section 3).

(ix) Instead of paying the price for an expropriated land to the owner, another piece of land, equivalent to such land, may be distributed to the owner upon his agreement. If such new land has a grade higher than that expropriated, the owner shall pay the difference to the Amir and vice versa (Article 14).

(x) The price for fruit bearing or ornamental trees or other trees on land subject to expropriation, which belong to the owner and user of such land, shall be determined by the municipality and administration of agriculture (Article 15).

(xi) Damages incurred due to research and surveys on the land shall be compensated as agreed by the parties or as determined by committee authorized for this work (Article 18).

(xii) If the owner has not succeeded in harvesting produce from the land, the land expropriating agency shall compensate the damages as determined by the authorized committee considering the proceeds obtained by the owner from land (Article 19).

13 A tribal leader in the tribe/community, possibly religious leader at that location (common in Taliban communities).

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(xiii) The land owner, user or their legal procurator shall be informed three months prior to expropriation and the price of land, where s/he is not present even though invited, this shall not prevent implementing the project (Article 20).

(xiv) While expropriating the land, the administration shall receive legal documents establishing the title to the expropriated land from the owner who shall submit the documents to expropriating administration (Article 22).

21. The further amended Land Acquisition Law (the amended LAL 2017)14 addresses the land expropriation process and legal rights in relation to the process. The 2005 Land Acquisition Law (LAL) was amended to align it with the international best practices in land acquisition and resettlement. This amended law also covers resettlement and rehabilitation. For public interest purposes, such as, construction of public infrastructure and acquisition of land with cultural or scientific values, land of higher agricultural productivity, or large gardens, the amended law provides that:

Private lands will only be acquired for pre-defined types of projects for public interest. (Article 5, amended LAL).

Limitations in land acquisition: Lands with historic, cultural values and protected areas will not be expropriated. (Article 6, section 1, amended LAL). Expropriation of agricultural and orchard lands, forests, agricultural farms and green areas with environmental values will require state approval. (Article 6, section 2, amended LAL).

In case parts of the private land is expropriated in a way that the remaining parts are usable by the owner, these remaining parts will not be expropriated. (Article 15, section 3, amended LAL).

In case the remaining part is not usable by the owner, subject to owner’s agreement, the expropriating agency will need to expropriate the remaining parts as well. (Article 15, section 4, amended LAL).

The expropriating agency can acquire/purchase land, outside of the city master plan area, upon settlement and agreement of the owner. (Article 18, section 1, amended LAL).

The expropriating agency will need to pay compensation for the expropriated assets to the affected person before commencement of the project. (Article 37, section 1, amended LAL).

Resettlement: The expropriating agency will need to take necessary measures in accordance with the Law of Mines, electricity provision law and other relevant laws, to resettle those families living outside of the city master plan area losing houses in a collective manner and for this purpose a resettlement committee is proposed. (Article 38, sections 1 and 2, amended LAL).

22. Law on Managing Land Affairs” (LML .15 April 2017, no. 1254) is aimed at: management of land affairs in Afghanistan. Resolve the problem issue caused by the implementation of varying policy related to land

management. Refund of all land which are distributed without any permission by law and Sharia. Establishment and facilitating legal access to government land for agriculture, Business,

public services, industrial activities and acquiring the national and international investment.

14 This was approved by the government on 3 April 2017 and has been applicable since. An English version of the

amended Land Acquisition Law is a working document translated by the World Bank, which is not an official translated version.

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23. Furthermore, this Law aims also to prove standard system for land titling, land segregation and registration; prevent illegal land acquisition and distribution; provide the people with access to land; and provide conditions for appropriation of lands. The LML provides that: 24. Management of land ownership and related land management affairs and implementation of this law is under the responsibility of Ministry of Urbana Development and Land MUDL (Article 4). 25. Ownership is verified by providing the legal and valuable documents (article 9), including power of attorney, Decision of court, Tax paper, legal documents, deed, traditional deed and property dealer document. 26. Public project can be implemented in the public land by approval of the government. 27. Technical implementation and administration of land management affairs shall be conducted under the Ministry of Urbana Development and Land MUDL and Ministry of Agriculture, Irrigation and Livestock, Head of MEW, Ministry of finance, Department of geodesy and Cartography and other related agencies have responsibilities for the implementation of this article (Article 39). 28. If the land clearance is conducted for the implementation of government project, the right of owner who are not present will be saved and when they claim and bring the required document, their right will be given (article # 44). 29. Regulation on linear project Land acquisition (21 April 2018): The aim of this regulation is as follow:

Identifying the right of ownership for the property to be acquired in linear projects. Providing facilities for acquisition of property and payment of compensation to APs. Providing facilities for implementation of government linear project according to plan.

3. ADB’s Safeguard Policy Statement (2009)

30. ADB’s policy on involuntary resettlement applies to losses due both to physical displacement (relocation, loss of residential land, or loss of shelter) as well as economic displacement (loss of land, assets, access to assets, income sources, or means of livelihoods) as a result of (i) involuntary acquisition of land, or (ii) involuntary restrictions on land use or on access to legally designated parks and protected areas regardless of whether such losses and involuntary restrictions are full or partial, permanent or temporary. The following ADB’s SPS principles on involuntary resettlement are stipulated and will apply to this project:

(i) Screen the project early on to identify past, present, and future involuntary resettlement impacts and risks. Determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks.

(ii) Carry out meaningful consultations with affected persons, host communities, and concerned nongovernment organizations. Inform all displaced persons of their entitlements and resettlement options. Ensure their participation in planning, implementation, and monitoring and evaluation of resettlement programs. Pay particular attention to the needs of vulnerable groups, especially those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land, and ensure their participation in consultations. Establish a grievance

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redress mechanism to receive and facilitate resolution of the affected persons’ concerns. Support the social and cultural institutions of displaced persons and their host population. Where involuntary resettlement impacts and risks are highly complex and sensitive, compensation and resettlement decisions should be preceded by a social preparation phase.

(iii) Improve, or at least restore, the livelihoods of all displaced persons through (i) land-based resettlement strategies when affected livelihoods are land based where possible or cash compensation at replacement value for land when the loss of land does not undermine livelihoods, (ii) prompt replacement of assets with access to assets of equal or higher value, (iii) prompt compensation at full replacement cost for assets that cannot be restored, and (iv) additional revenues and services through benefit sharing schemes where possible.

(iv) Provide physically and economically displaced persons with needed assistance, including the following: (i) if there is relocation, secured tenure to relocation land, better housing at resettlement sites with comparable access to employment and production opportunities, integration of resettled persons economically and socially into their host communities, and extension of project benefits to host communities; (ii) transitional support and development assistance, such as land development, credit facilities, training, or employment opportunities; and (iii) civic infrastructure and community services, as required.

(v) Improve the standards of living of the displaced poor and other vulnerable groups, including women, to at least national minimum standards. In rural areas provide them with legal and affordable access to land and resources, and in urban areas provide them with appropriate income sources and legal and affordable access to adequate housing.

(vi) Develop procedures in a transparent, consistent, and equitable manner, if land acquisition is through negotiated settlement in order to ensure that those people who enter into negotiated settlements will maintain the same or better income and livelihood status.

(vii) Ensure that displaced persons without titles to land or any recognizable legal rights to land are eligible for resettlement assistance and compensation for loss of non-land assets.

(viii) Prepare a resettlement plan elaborating on displaced persons' entitlements, a consultation and disclosure plan, a grievance redress mechanism, an income and livelihood restoration strategy, institutional arrangements, monitoring and reporting arrangement, budget, and a time-bound implementation schedule.

(ix) Disclose a draft resettlement plan, including documentation of the consultation process in a timely manner, before project appraisal, in an accessible place and a form and language(s) understandable to the affected persons and other stakeholders. Disclose the final resettlement plan and its updates to the affected persons and other stakeholders.

(x) Conceive and execute involuntary resettlement as part of a development project or program. Include the full costs of resettlement in the presentation of project’s costs and benefits. For a project with significant involuntary resettlement impacts, consider implementing the involuntary resettlement component of the project as a stand-alone operation.

(xi) Pay compensation and provide other resettlement entitlements before physical or economic displacement. Implement the resettlement plan under close supervision throughout project implementation.

(xii) Monitor and assess resettlement outcomes, their impacts on the standards of living of displaced persons, and whether the objectives of the resettlement plan have been

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achieved by taking into account the baseline conditions and the results of resettlement monitoring. Disclose monitoring reports.

31. An important aspect of ADB’s involuntary resettlement safeguard requirement is compensation at replacement cost comprising the following elements: (i) fair current market value at the time of compensation; (ii) transaction costs; (iii) interest accrued, (iv) transitional and restoration costs; and (v) other applicable payments, if any. In the calculation, structures will be compensated at replacement costs without depreciation of structures. Qualified and experienced experts shall undertake the valuation of acquired assets. 32. Persons or households without formal legal rights nor recognized or recognizable claims to the acquired land are still entitled to be compensated for their loss of assets other than land, such as, dwellings or other improvements on the land at full replacement cost, provided that they have occupied/used the land or structures in the affected land prior to a declared cut-off date. 33. Other ADB policies relevant to resettlement planning and implementation include the Policy on Gender and Development that adopts gender mainstreaming as a key strategy for promoting gender equity, and for ensuring participation of women and that their needs are explicitly addressed in the decision-making process for development activities. For projects that have the potential to have substantial gender impacts, a gender plan is prepared to identify strategies to address gender concerns and the involvement of women in the design, implementation and monitoring of the project. 34. The ADB Public Communications Policy15 seeks to encourage the participation and understanding of people and other stakeholders affected by ADB-assisted activities. Information dissemination on ADB-funded projects should start early in the project preparation phase and continue throughout all stages of project development, in order to facilitate dialogue with affected persons and other stakeholders.

4. The Framework Principles 35. The legal and policy framework for compensation, site clearance, and resettlement and rehabilitation under the project is defined by the relevant laws and regulations of the Government of the Islamic Republic of Afghanistan and ADB’s Safeguard Policy Statement (2009). In case of discrepancies between the Borrower’s16 laws, regulations, and procedures and ADB's policies and requirements, ADB's policies and requirements will prevail. Following the requirements of the SPS, this LARF adopts the following principles:

(i) Involuntary resettlement should be avoided or at least minimized to the extent possible. (ii) Compensation will ensure the maintenance of the affected persons’ pre-project living

standards. (iii) APs should be fully informed and consulted on land acquisition and resettlement (LAR)

compensation options. (iv) affected persons’ socio-cultural institutions should be involved as much as possible in

the resettlement process. (v) Compensation and/or rehabilitation will be executed with equal consideration of women

and men.

15 ADB. 2011. Public Communications Policy. Manila. 16 In this case, “Grantee’s”.

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(vi) Absence of formal legal land title should not be a hindrance to compensation entitlements.

(vii) Attention should be paid to households headed by women and other vulnerable groups, such as the elderly, and appropriate assistance should be provided to help them improve their status.

(viii) Land acquisition and resettlement (LAR) should be conceived and executed as a development process, and the full costs of compensation should be included in project costs.

(ix) All compensation and resettlement subsidies must be provided prior to the dispossession/ acquisition of the affected property.

36. A private entity can purchase required land through negotiated settlement in a willing seller and willing buyer situation. In such a situation, though, following the requirements of ADB’s SPS for negotiated land acquisition, the PIO shall ensure meaningful consultations between the parties and shall engage an independent external party to document the negotiation and settlement processes. The CPMO shall agree with ADB on consultation processes, policies, and laws that are applicable to such transactions; third-party validation of the transactions; mechanisms for calculating the replacement costs of land and other affected assets; and record-keeping requirements. In general, the project will ensure that if any of the project beneficiaries is acquiring land through direct purchase, such plots should be free of informal use that will be confirmed through due diligence and pictures by PIO. There should be no third-party induced displacement (e.g., a plot is acquired through direct purchase while informal vendors are displaced or lose some structures). In this sense, NWARA through its CPMO will bear the responsibility to ensure that plots with IR impacts are fully screened out, and compensation for unanticipated IR impacts will be the responsibility of NWARA.

5. Comparison of Afghanistan’s Laws and Policies and ADB’s SPS (2009) 37. According to ADB’s SPS requirements, a comparison and gap analysis of Afghanistan’s relevant laws and regulations vis-à-vis ADB’s SPS needs to be undertaken. Where there are differences between the two, ADB’s SPS requirements will prevail (or, the more stringent measure will prevail) and gap-filling measures will be specified and agreed with ADB. 38. A comparison of the Afghanistan laws with the SPS (policy on involuntary resettlement) indicates that in general, the law covers some relevant provisions required by ADB. The main difference comprises the SPS requirements of compensation at replacement cost, and the restoration of income and lost livelihood while the emphasis of the Afghanistan law is on the compensation payment. Several key elements of the SPS are not present in the country’s laws. For example, the country’s laws do not require preparation of a documenting process, consultations with displaced persons, or any specification of procedure for the acquisition and compensation. More specifically, the Afghanistan laws do not recognize compensation to users who do not have legal title to the land, have no mention of livelihoods and income restoration measures, and do not include compensation provision for timber trees and annual crops. 39. Main gaps between the Afghanistan laws and ADB policy requirements are summarized in Table 1.

Table 1: Involuntary Resettlement Comparison: ADB’s SPS (2009) and Afghanistan’s Laws and Regulations

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ADB’s SPS (2009) Afghanistan Law17

Avoid and minimize land acquisition. National legislations are silent on this provision.18 Regulation on linear project Land acquisition (21 April 2018) also emphasize on reducing the land acquisition on private land and perusing on implementation of projects in government and public land ( article 7).

AFs/APs/DPs/AHs should be fully informed and consulted for resettlement and compensation options.

The amended LAL provides for full information and compensation options to be discussed with the AHs.

AFs/APs/DPs are required be compensated at replacement cost.

LALs state the fact that APs should be compensated but are not quite clear as to how the costs are arrived at; several methods such as based on market price, in accordance with unified tables, decided by the municipality and administration of agriculture, determined by the Council of Ministers, etc. LAL does not mention about compensation for timber trees, annual crop losses, installations on land, and other immovable property.

Lack of formal land title should not be a hindrance to compensation or rehabilitation.

The amended LAL provides for compensation to the users without any legal/formal documentation.

AFs/APs/DPs should be timely compensated. The amended LAL provides for compensation to be paid prior to commencement of project works.

AFs/APs/DPs should be rehabilitated so as to guarantee at least maintenance of their pre-project livelihood standards.

Relevant laws do not mention about livelihood aspects and income restoration. According to Article 44 of amended LAL, the land acquiring organization shall, prior to the implementation of project, take measures to resettle and rehabilitate them.

Attention to vulnerable people. LAL does not include provisions to protect vulnerable people, including women, elderly and ethnic minorities.

Grievance redress mechanism. LAL does not include provisions for grievance redress. Emphasizes the need to protect APs’ socio-cultural institutions.

LALs have no provisions in this area.

Early identification of APs/DPs through a project census.

LALs do not mention about methods to identify APs. According to article 39 of LML, the land clearance and identification of Aps are the authority of MUDL that when it is required will be done by approval of president. MEW, MAIL, MOF and relevant departments also have the responsibility of implementation.

Full costs are to be included in project budgets. Price of land, houses, structures and trees to be paid by the expropriation department or the project. No mention of other costs.

Resettlement planning document required No such requirement. Based on the article 6 of Regulation on linear project Land acquisition (21 April 2018), when it is required the land acquiring organization will provide resettlement plan in cooperation with MUDL/ Arazy and other relevant organization.

AF = affected family, AH = affected household, AP = affected person, DP = displaced person, LAL = Land Acquisition Law.

17 This includes the new land law of 2017, “the amended LAL of 2017”. 18 In the amended LAL there is no specific requirement for avoiding LAR impact. However, Article 8, section 2 of the amended LAL provides for minimization of impact.

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6. Remedial Measures to Bridge the Gap 40. The identified gaps between ADB’s requirements and the country’s law are addressed in the entitlement matrix that follows. In general, this LARF requires that a full and fair assessment of all land owners and/or users be evaluated before a cut-off date. Land owners without formal title will be compensated. Affected persons will be fully consulted in determining the replacement cost for their land, property, structures, crops, trees, etc. Further, the LARF requires that a comprehensive consultation is undertaken with the affected persons in the LAR process. The affected persons should be consulted throughout the process and that they be disclosed with all relevant information using a variety of channels such as social networks, community leaders, Water User Associations, Mirabs and the Shura. 41. The land acquisition and resettlement tasks under the project will be carried out according to the compensation eligibility and entitlement provisions developed in line with the Afghanistan laws and the ADB policy as discussed in this LARF.

7. Affected and/or Displaced Persons, Cut-off Date 42. Types of displaced persons within project area are as follows:

(i) Landowners: Persons with formal legal rights to land they may lose in its entirety or in part;

(ii) Persons who may lose the land they occupy or utilize in its entirety or in part who have no formal legal rights to such land, but who have claims to such lands such as customary claims, that are recognized or recognizable under national laws; and

(iii) Persons who may lose the land they occupy or utilize in its entirety or in part who have neither formal legal rights nor recognized or recognizable claims to such land. Squatters, encroachers, tenants, etc., constitute this type.

43. Persons covered under (i) and (ii) are provided compensation at full replacement cost for the land they lose, payment for non-land assets they own and necessary assistance in cash or in-kind. Persons covered under (iii) are provided compensation at full replacement cost for non-land assets they own and resettlement assistance, in lieu of compensation for the land they occupy, and other assistance, as necessary, to achieve the objectives set out in this policy if they occupy the project area prior to the cut-off date of the project. 44. A cut-off date is a date that signifies eligibility for receiving compensation by the affected persons due to the project. Generally, a cut-off date for the titleholders is indicated in the expropriation law of a country, and, for the non-titleholders, if it is not included in the country’s laws, a cut of date is the start date or end date (to be agreed) of a project’s census and assets inventory. It is required that a cut-off date for the non-title holders is adequately disclosed. 45. The project will establish a cut-off date for eligibility to entitlements for each subproject. The cut-off date sets the time limits to determine eligibility of persons living with assets or interests inside the project areas during the period to be counted as affected person. Should they be adversely affected, they will be entitled to compensation for their affected assets, including rehabilitation measures as needed, sufficient to assist them to improve or at least maintain their pre-project living standards, income-earning capacity and production levels. A general information drive about the project, cut-off dates and entitlements will be held following a subproject approval by the government and ADB. Persons who occupy spots in the project area after the cut-off date will not be eligible to any compensation or assistance.

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46. This framework recognizes that certain social groups may be less able to restore their living conditions, livelihoods and income levels and therefore, at greater risk of impoverishment when their land and other assets are affected. The extent of impact on the disadvantaged groups, such as, landless or those without title to land, poor, households headed by women, elderly, and disabled, who will be entitled to receive special rehabilitation assistance will be determined during preparation of the subproject-specific resettlement plan. The project’s strategies on vulnerable groups are:

(i) Surveys of socioeconomic conditions of affected persons will identify the conditions, needs and preferences of poor households and woman-headed households (and other female affected persons); monitoring of resettlement activities will assess separately the impacts on vulnerable affected persons.

(ii) Ensure that the process of land acquisition and resettlement does not disadvantage households headed by women or elderly or disabled, and poor households, particularly the landless or those without title to land.

(iii) Preparation of information materials will take into consideration the language and literacy skills of participants, as well as other gender and cultural sensitivities that would affect their participation.

(iv) The project will give priority to willing vulnerable affected persons for employment in construction, operation and maintenance of physical infrastructure, reforestation and protection and other project activities, where appropriate.

8. Compensation Eligibility and Entitlements

47. Under the LARF, the following categories of affected persons will be entitled to compensation and/or rehabilitation benefits:

(i) Affected persons losing land irrespective of whether land is held under valid legal rights or customary rights with or without legal status;

(ii) Tenants and sharecroppers whether registered or not; (iii) Owners of buildings, crops, trees or other objects attached to the land; and (iv) Affected persons losing business or income/employment opportunities.

48. Affected persons and their affected assets will be identified through a detailed measurement survey (DMS) upon the availability of the detailed project design. The DMS start date in a subproject area will be the cut-off date for compensation eligibility. Affected persons settling in affected areas after this date will not be eligible for compensation. They, however, will be given sufficient notice to vacate and dismantle the affected land and/or structures. Their dismantled structures will not be confiscated nor, will they will be fined or sanctioned. 49. The unit of entitlement is the affected individual, or household or affected community, as the case may be, that is eligible to receive compensation and assistances. As a rule, the unit of loss determines the unit of entitlement. If an individual loses a small business, the individual is entitled to compensation. If more than one person owns or customarily uses expropriated resources, then they are entitled to share in compensation. The concept of the unit of entitlement is related to the entitlement matrix, proposed in Table 2. 50. The entitlement matrix takes the types of displaced persons into consideration. The matrix includes (i) legally mandated compensation for land and other assets acquired; (ii) additional cash grants or top-up needed to meet replacement cost; (iii) cash assistance such as shifting allowance

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for relocation; (iv) resettlement assistance such as housing plots or houses or apartment units built for relocation; (v) income restoration assistance or grants for business; (vi) employment and training opportunities; and (vii) special assistance to vulnerable groups. The bottom line is to ensure that development interventions do not disadvantage the displaced persons. 51. The compensation and rehabilitation entitlements for each affected item established for the project is detailed in Table 2. All compensation is to be paid at least one month in advance of taking possession of the affected assets.

Table 2: Entitlement Matrix

Loss Type Application Unit of Entitlement

Compensation Entitlements

Permanent loss of arable land

All land losses independent of impact severity

Farmer/Titleholder Land for land compensation with plots of equal value/productivity to plots lost; or cash compensation at replacement cost based on current market rate free of taxes, registration and transfer charges. Unaffected portions of a plot will also be compensated if they become unusable after impacts occur.

Leaseholder (registered or not)

Transfer of lease to other plots of equal value/productivity of plots lost, or Cash equivalent to the net income from the land calculated on the basis of the market value of annual production of affected land for the remaining lease years (up to maximum 10 years).

Sharecroppers (registered or not)

Cash compensation equal to current market value of the lost harvest share once (temporary impact) or twice (permanent impact).

Agricultural workers losing their contract

Cash indemnity corresponding to their salary in cash and kind for the remaining part of the agricultural year.

Non-titled cultivators

A one-time rehabilitation allowance equal to 1-year's net income from the affected land (in addition to crop compensation) for land use loss.

Additional provisions for severe impacts (> 10% of land, property or assets loss)

Farmer/Titleholder Leaseholder

A one-time severe impact allowance equal to the net income from annual crop production (inclusive of winter and summer crop and addition to standing crop compensation) and the waiving of taxes and fees.

Share-croppers (registered or not)

A one-time severe impact allowance equal to the net income from their annual share of harvest lost (additional to standard crop compensation).

Non-titled land holders

A one-time severe impact allowance equal to the net annual income from the affected land (additional to standard crop compensation).

Temporary land acquisition

All APs (including non-titled land holders)

Affected land/communal infrastructure will be restored or reconstructed to pre-project conditions. Rent shall be agreed between landowner and contractor equal to the revenue lost at current market value (e.g. compensation for harvests lost at average yield / hectare).

Residential/ commercial land

Titleholder Land for land compensation through provision of a plot comparable in value/location to the plot lost; or cash compensation for affected land at full replacement cost free of transaction costs.

Non-titled land holder

Provision of a free or leased plot in a government resettlement area or a self-relocation allowance equal to one year at minimum salary.

Houses buildings and structures

Full/partial loss of structures

Owners (with/without house or building registration)

Cash compensation at replacement cost for affected structure/fixed assets free of salvageable materials, depreciation and transaction costs. Plus, shifting assistance at actuals. For partial impacts, full cash assistance to restore remaining structure. The owners would be consulted for

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Loss Type Application Unit of Entitlement

Compensation Entitlements

agreeing to restoration. Cost of lost water and electricity connections will be included in the compensation for restoration.

Renter/ Leaseholder

An allowance equal to three months’ rent. Shifting assistance at actuals. Additional structures erected by tenants will be compensated at current market prices with owner’s consent. Refund of advance paid by tenant to house owner.

Standing crops

Crops affected All APs (including non-titled land holders

Cash compensation equivalent to the gross income from the crop computed as the current market value of the total annual produce from affected land. To be paid both to landowners and tenants based on their specific sharecropping agreements.

Trees Trees affected All APs (including non-titled land holders)

Cash compensation shall reflect income replacement. Fruit trees will be valued at current market value of 1-year’s produce x number of years needed to grow a tree of the same productivity.

Business/ employment

Temporary/ permanent loss of business or employment

All APs (including non-titled land holders)

Business owner: (i) cash compensation equal to 1-year's income, if loss is permanent; (ii) cash compensation for the period of business interruption, if loss is temporary. Compensation based on tax declaration or official minimum salary. Worker/employees: Indemnity for lost wages for the period of business interruption up to a maximum of three months.

Livelihood Vulnerable AP An additional allowance equal to at least three months at minimum salary. Priority for employment in project-related jobs, training opportunities, self-employment and wage-employment assistance. Training programs to improve livelihood opportunities for vulnerable persons.

Transitional allowance

Relocating households or businesses

All relocating households or businesses (including renters and informal settlers)

Transitional allowance per household or business for livelihood losses at AF5,200 multiplied by up to three months.

Shifting allowance

Relocating households or businesses

All APs affected by relocation

Provision of cash compensation to cover transport expenses at AF5,000 per household or business.

House renters Provision of a cash grant for three months’ rent at prevailing rate in the area.

Assistance to vulnerable affected households

Affected by land acquisition, resettlement, etc.

AH which are: female-headed; poor (below poverty line) or headed by disabled persons

-Additional cash assistance equivalent to 3 months’ average household income (estimated at AF28,500)

-Preferential employment in project related jobs.

Community assets

Loss/damage to public infrastructure/ utilities

Rehabilitation/replacement of affected structures/utilities (i.e. mosques, footbridges, roads, schools, health centres, etc.) to pre-project levels.

AP = affected persons.

C. Socio-Economic Information

1. Methodology 52. The project will carry out a 100% census and assets inventory of the project affected persons to determine (i) who they are, (ii) what they do for a livelihood, and (iii) what they possess and are likely to lose due to land acquisition for the project. A pilot socio-economic survey will be carried out for generating benchmarks for monitoring indicators. The sample size will be determined in consultation with ADB. Upon completion of the project detailed design, a DMS will

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be carried out for validating and finalizing the project census and assets inventory. Consultations (discussed in Section D) too will be used as an important tool for generating socio-economic information.

2. Valuation Methods of Affected Assets in Afghanistan 53. Land. Compensation prices for land include (i) the price of land, (ii) price of any residential houses, buildings, and other constructions located on the land, and (iii) the price of any fruit bearing or ornamental trees, or other saplings set on the land. The valuation methodology includes thorough assessment of the prices in the area and agreement with the affected people which is then submitted for final cabinet approval, in consideration of the grade and location of the land, based on the current market price of the land. The price of residential houses, buildings, and other constructions shall be determined by a committee comprising the regional director of the property office in accordance with The Unified Table for Valuation which is expected to be updated annually. 54. Annual Crops. The price of annual crops is determined according to the Unified Table of Valuation or if this is not updated, the current market price. 55. Fruit Bearing or Ornamental Trees. The price of fruit bearing trees or ornamental trees or other trees set on a land subject to expropriation, which belong to the owner or user of such land, is determined by the regional director and the administration of agriculture, using the Unified Table of Valuation or if this is not updated, the current market price. Cash compensation shall reflect income replacement. Fruit trees will be valued at current market value of 1-year’s produce x number of years needed to grow a tree of the same productivity. 56. Residential Houses, Buildings and Other Construction. The price of structures will be determined according to The Unified Table of Valuation or of this is not updated the current market price. 57. Vulnerable Households – Vulnerable households (affected households below the poverty line, women household heads, mentally challenged headed households, etc.) will be provided an additional three months of average household income allowance (AF28,500) as assistance and will be given priority in employment in project-related jobs. 58. Severe Agricultural Land Impacts – When 10% or more of an affected person’s agricultural land is affected, the affected persons will get an additional allowance for severe impacts equal to the market value of a year’s net income crop yield of the land lost.

3. Methods for Determining Replacement Costs 59. The methodology for assessing compensation at replacement costs of different items is as follows:

(i) Land will be valued at replacement cost based on market rates derived from a survey of land sales in the year before the impact survey. No deductions for taxes or transaction costs will be applied.

(ii) Houses and/or buildings will be valued at replacement cost based on cost of materials, type of construction, labor, transport and other construction costs. No deductions will be applied for depreciation, salvaged materials and transaction costs.

(iii) Annual crops will be valued at full market rate at the farm gate.

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(iv) Fruit trees will be valued based on age category (a) seedling; (b) not yet productive; (c) productive). Productive trees will be valued at market value of 1-year produce multiplied by the number of years needed to grow a new tree with the same productive potential of the lost tree.

(v) Timber trees will be valued at market value of timber. Affected persons will be provided with free planting materials or in lieu, cash will be provided.

(vi) Other assets (i.e. income, cultural or aesthetic) based on replacement cost or cost of mitigating measures.

60. Initial asset valuation will be the responsibility of the CPMO/PIO executed with support of the international consultants which will be verified and certified by the regional property valuation team headed by the senior property supervisor and, then, finally approved by the implementing agency (i.e., NWARA). If the land and/or property is being acquired with the owner’s consent, this valuation will be used as the basis of negotiation between the owners and the local authorities. The final negotiated compensation rates will not be below the market prices and the compensation for affected assets would be at replacement cost. D. Consultation, Participation, and Disclosure 61. A subproject requiring land acquisition will carry out meaningful consultations with the project affected persons throughout the project cycle and ensure their participation. The stakeholders include third-party users All land acquisition and resettlement activities will be carried out with the cooperation and assistance of affected persons, local elders and the district administrative agencies. More specifically:

(i) The relevant officials of provincial and district towns will be informed about the project and their assistance will be solicited in the supervision of the affected person census and the inventory of affected assets.

(ii) The PIO will carry out the DMS with the cooperation of affected persons and will inform them the results of the survey and the inventory prior to the finalization of a subproject resettlement plan.

(iii) The preference of affected persons related to compensation and other resettlement assistances will be given due consideration during the planning process.

(iv) Specific mechanisms for ensuring the active involvement of affected persons and other stakeholders will be detailed in subproject LARPs which also will include an appendix with date, list of participants, and minutes of consultation meetings.

62. This LARF will be disclosed on the ADB website. The subproject LARP(s), in addition to disclosure in the ADB website, in local language (Pashto and Dari) will be disclosed to the affected persons and a pamphlet or booklet in local language, summarizing compensation eligibility and entitlement provisions, and grievance redress mechanism, etc. will be sent to all affected persons. An outline of a project information booklet is included in Appendix 2. E. Compensation, Income Restoration, and Relocation 63. It is anticipated that there will be no land acquisition and no impacts on the affected persons. However, should impacts be identified during the course of the project, subproject LARPs will be prepared and compensation at replacement cost will be provided according to the entitlement matrix included in this LARF. It is not anticipated that the possible minimal land acquisition will involve physical and/or economic displacement, leading to a loss of income or livelihood, or relocation. Should income restoration and relocation become necessary, the LARP(s) will outline a plan for such activities.

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F. Grievance Redress Mechanism 64. A subproject level grievance redress mechanism will be available to an aggrieved affected person free of any cost to allow appeals against any disagreeable decision, practice or activity arising from land or other assets compensation. Affected persons will be fully informed during the consultations of their rights and of the procedures for addressing grievances, both verbal and written. 65. Various queries, concerns, complaints and problems that are likely to be generated among the APs and that might require mitigation, include the following:

(i) Affected households not listed as affected; (ii) Losses not identified correctly; (iii) Compensation and/or assistance considered inadequate or not as provided in the

entitlement matrix; (iv) Dispute about ownership of assets; (v) Internal dispute amongst owners, leaseholders, and /or sharecroppers; (vi) Delay in disbursement of compensation payments and/or assistance; (vii) Improper distribution of compensation payments and/or assistance in case of joined

ownership of land and other properties; and (viii) rehabilitation work not properly done by contractor.

66. Care will be taken to prevent grievances rather than going through a redress process by ensuring active consultation with and participation of affected persons in the LARP planning and implementation process. If grievances still arise, all attempts will be made to resolve informally at the local level. At any stage of the grievance redress process, affected persons will have the option of taking their complaint to the formal mechanism of addressing grievances described in Table 3, including accessing the country’s legal system, at their own cost. In case of disputes among multiple project beneficiaries or owners, the project level grievance redress mechanism (GRM) is not an appropriate instrument for the dispute resolution, although they could use the services of the local shura as an informal arrangement, which is common in Afghanistan.

Table 3: Grievance Resolution Process

1. First, complaints resolution will be attempted through a district committee comprising the district governor, senior district property supervisor, and LARP implementation nongovernment organization.

2. In the absence of a settlement, APs may appeal to Director of CPMO. The Director will decide the case within 15 days and inform the AP.

3. If the CPMO decision is unacceptable to the APs, they can register the complaint directly with the IA within 1 month of receiving a response from the CPMO with documents supporting their claim. The IA will respond within 15 days of registering the complaint. The IA’s decision must be in compliance with these LARF provisions.

AP = affected persons, IA = implementing agency, LARF = land acquisition and resettlement framework, LARP = land acquisition and resettlement plan, CPMO = Central Program Management Office.

G. Institutional Arrangements and Implementation 67. The main institutions that will be involved in LAR activities are NWARA, MOF and the MUDL, and if required, provincial and district governors, district property office (municipality),

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other district agencies (Agriculture, Cartography, Land Affairs Management), law court, and community shura.

1. Implementing Agencies 68. MOF is the executing agency for the project. However, NWARA will have day to day responsibility for coordination with all relevant ministries and agencies in implementing their components. A safeguards team is established within the CPMO that will directly be responsible for the day to day management of the project, monitoring of LAR related activities if any, preparation of LARP and documentation of the process.

2. Implementation Consultants 69. The LARP implementation consultants are mobilized under the original project to implement the LARP and provide capacity development for the CPMO staff. The implementation consultants have resettlement specialist who is working as part of the CPMO safeguards team, which will provide sufficient in-house expertise on resettlement planning, implementation and supervision. They will analyze the cadastral maps, carry out the DMS, identify vulnerable groups, assist relevant agencies in conducting compensation negotiation with the affected persons and prepare subproject LARPs, in close collaboration and consultation with the district governor and relevant line agency staff. The CPMO will submit these LARPs to the NWARA for approval.

3. Local Governments 70. Local government agencies involved in LARP activities are the property office of district municipal authorities, the local Land, Agriculture and Cartography offices. To provide an effective inter-agency coordination and to officially endorse surveys, each affected district will establish a coordination committee. The composition of the district coordination committee includes the district governor, a representative of each relevant agency, and the implementation consultants. The coordination committee will have the overall responsibility for supervision of land and property valuation, acquisition, and approval of compensation rates. The individual agencies will exercise their specific functions as provided in the relevant laws under the coordination of the district committee.

4. Central Government 71. Relevant agencies at central government level are MOF and NWARA, which will have the overall responsibility for agency coordination and lead the entire process as well as the final approval of a subproject LARP prior to its implementation. The other offices that will closely work with NWARA include: Central Land Affairs Management Department, the local government including property offices, and the Ministry of Justice. These offices will provide advice on LAR implementation and help resolve matters that district teams are not able to resolve. 72. An organization chart for agencies involved with LARP implementation is provided in Figure 1 below.

5. Implementation Process 73. In Afghanistan the implementation of a LARP may take several months, or even years. The implementation consultants will be hired by the NWARA to assist in the LARP implementation process. The CPMO safeguards team will establish and announce the cut-off date based on the

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start date of the DMS for the proposed subproject, based on the eligibility criteria defined in this LARF. The affected persons of affected assets will be paid their due compensation at least one month prior to the acquisition of their assets. The subproject LARPs will detail the implementation process. It is required that an independent monitoring agency issues a compliance certificate after conducting a comprehensive audit to ensure that affected persons have been compensated and their assets have been completely removed from the site. Civil works can commence only after this process. 74. It is suggested that the bidding documents should have the language properly spelled out for contractor to adopt during implementation: Social safeguards covenants/conditions:

Award of works contract will not be allowed prior to availability of procurement plan tied to availability of: (a) detailed design of the project; (b) implementation ready LARP or DDR based on detailed design accepted by ADB and publicly disclosed; (c) government budget has been allocated for LAR and/or non-LAR compensation.

Commencement of Civil works shall not be allowed and withdrawal applications on

civil works shall not be accepted prior to (a) full payment of compensation and entitlements to APs in accordance with the LARP (for subprojects with LAR impacts) (b) Submission of Contractor’s verification of compliance report to ADB or DDR based on detailed design accepted by ADB prior to contract award; (c) ADB acceptance of compliance report, and TPM verification report (for subprojects with LAR impacts) or DDR based on detailed design.

75. Works Contract: Include the following services in the scope of works to be completed by the works contractor:

Prior to civil works commencement:

Transfer funds to APs and provide support to reallocation activities, if any; and Provide support to EA/IA in clearance of right of way (ROW). If any unanticipated LAR impact are identified, support supervision consultant and

PIO in identifying the initial inventory of unanticipated LAR impacts;

Upon commencement of civil works:

Provide support to supervision consultant in social safeguards monitoring (SSM) through including section on SSM in each monthly/quarterly progress report;

Stop construction works if any unanticipated impact is identified; and

Support EA/IA and supervision consultant in preparation and implementation of a corrective action plan if any unanticipated impact is identified.

H. Budget and Financing 76. All LARP preparation and implementation costs including cost of compensation and LAR administration will be considered as an integral part of the project cost. Each subproject LARP will include a budget section indicating: (i) unit compensation rates for all affected items and allowances; (ii) methodology followed for the computation of unit compensation rates; and (iii) a cost table for all compensation expenses including administrative costs and contingencies.

21

77. All costs for compensation at replacement cost, allowances, and administration of LARP preparation and implementation will be provided by the NWARA, which may or may not be a part of the ADB grant. In order to ensure that sufficient funds are available for LAR tasks, the government will allocate 100% of the cost of compensation at replacement cost and expected allowances estimated in each subproject LARP plus 15% of contingencies before resettlement plan implementation. 78. Required funds for NWARA to implement LARPs will be withdrawn from NWARA’s imprest account. The budget for land, tree and crop compensation as well as structures/houses, employment loss, income loss, etc. will be disbursed by the NWARA CPMO to the affected persons or through the contractor of civil works as being the practice with the original project.

Figure 1: Organizational Chart for LARP Implementation

CPMO (Implementation Consultant +

other national/international specialists of CPMO Safeguards

Team)

Affected People

SHURA Men - Women

Provincial + District Staff of NWARA

Government of

Afghanistan

ADB

NWARA

PIO (District Coordination Committee)

Local Government

Agencies

22

I. Monitoring and Reporting 79. Monitoring and reporting will include the results of the involuntary resettlement screening process as well as the due diligence exercise, including the rapid social assessment check list (Appendix 1), and which subprojects have been included as category C and as category B (if any). 80. All LAR tasks, including grievances, under the project will be subjected to internal monitoring. The monitoring exercise will be routinely conducted by the CPMO safeguards team. NWARA/CPMO will communicate the results as a monitoring report semiannually to ADB. Indicators for the internal monitoring will be those related to the processes and immediate outputs and results. This information will be collected directly from the field and reported monthly to the CPMO. The monthly reports will be consolidated and included in the semiannual monitoring reports to ADB. The monitoring will specifically focus on the status of:

(i) Information campaign and consultation with affected persons; (ii) Land acquisition and compensation payments; (iii) Compensation for affected structures and other assets (as the case may be); (iv) Relocation of affected persons (as the case may be); (v) Payments for loss of income (as the case may be); (vi) Selection and distribution of replacement land areas (as the case may be); (vii) Income restoration activities (as the case may be); and (viii) Grievance redress mechanism.

81. ADB will review and post the semi-annual monitoring reports on its website. 82. If there is land acquisition, NWARA will engage an independent monitor (individual or agency), who will conduct a comprehensive audit and issue a compliance or no-objection certificate specifying that affected persons have been paid compensation at replacement cost and their assets have been completely removed from the site. Civil works can begin only after this.

23 Appendix 1

Appendix 1: Involuntary Resettlement Screening and Rapid Social Assessment Checklist

Probable Involuntary Resettlement Effects

Yes No Remarks

Involuntary Acquisition of Land

1. Will there be land acquisition?

2. Is the site for land acquisition known?

3. Is the ownership status and current usage of land to be acquired known?

4. Will easement be utilized within an existing Right of Way (ROW)?

5. Will there be loss of shelter and residential land due to land acquisition?

6. Will there be loss of agricultural and other productive assets due to land acquisition?

7. Will there be losses of crops, trees, and fixed assets due to land acquisition?

8. Will there be loss of businesses or enterprises due to land acquisition?

9. Will there be loss of income sources and means of livelihoods due to land acquisition?

Involuntary restrictions on land use or on access to legally designated parks and protected areas 10. Will people lose access to natural resources, communal facilities and services?

11. If land use is changed, will it have an adverse impact on social and economic activities?

12. Will access to land and resources owned communally or by the state be restricted?

Information on Displaced Persons: Any estimate of the likely number of persons that will be displaced by the Project? [ ] No [ ] Yes If yes, approximately how many? ______________________ Are any of them poor, female-heads of households, or vulnerable to poverty risks? [ ] No [ ] Yes Are any displaced persons from indigenous or ethnic minority groups? [ ] No [ ] Yes

Appendix 2 24

Appendix 2: Outline of a Project Information Brochure

(i) Project Information, time frame when the project is likely to commence construction and when constructions ends.

(ii) Resettlement issues: how the project adversely affects people in the project area, who are the affected people (including the third-party users), approximately how many persons and/or households will be affected and how (loss of homes, loss of income due to the loss of agricultural land other productive assets, e.g. shops, etc.), what mitigation measures have been planned. Time frame for land acquisition and compensation payment.

(iii) Insert the entitlement matrix. (iv) Consultations and their outcome – how the project has addressed the concerns of

the affected persons and other stakeholders. Inform the audience that consultation is a continual process and will be carried out through the project implementation.

(v) Disclosure – Inform the audience that relevant information from the safeguards planning document(s) will be disclosed to the project affected persons, and the entire document(s) will be submitted to ADB for review and posting on its website.

(vi) Grievance redress mechanism (GRM) – if the project affected persons and/or other stakeholders have any grievances or complaints related to the project, who do they complain to? Hence, GRM is a project level mechanism to resolve issues. Describe the proposed GRM structure, comprising …. …. …. (members) and describe the step-by-step process for GRM to resolve issues. The GRM should be free of cost to the aggrieved persons. Despite the GRM, the aggrieved persons are free to access the country’s legal system, at their cost, at any stage of the GRM, irrespective of its outcome.

(vii) Safeguards implementation monitoring – monitoring would be participatory as much as practicable involving the project affected persons. Periodical monitoring reports would be compiled into semi-annual monitoring reports for submission to ADB, which ADB will review and post on its website.

(viii) Insert the names, designations, and contact numbers and/or email addresses of the responsible persons in executing agency who could be contacted for information and for filing grievances.

25 Appendix 3

Appendix 3: Outline of an IR Due Diligence Report 1. Project description, project objective(s)

2. Proposed subproject description

a. How the proposed subproject fits into the project objectives

b. Current land use

c. Existence of any third-party users

d. Status of land ownership/tenure

e. Land purchased for the subproject through negotiated settlement, if any

f. Third party validation of negotiated settlement, if any

3. Subproject screening exercise

a. Filling of the IR screening checklist and results thereof

b. Consultations result with the stakeholders

c. IR safeguard issues, if any

d. Subproject prioritization result based on the screening exercise

4. Supporting documents for land ownership (attachment – attach photos of the site confirming no IR impacts are to be incurred)