E4367 V2 TELECOMMUNICATIONS SECTOR REFORM PROJECT LAND LEASE GUIDELINES The project aims to achieve the following objectives: (a) improve the enabling environment for the telecommunications sector and extend coverage in selected pilot locations; and (b) establish priority eGovernment technological foundations and institutional capacity for Government to embark on its public sector reform program. The Component 2, Extending connectivity to rural areas, will support the pilot program that seeks to increase connectivity in commercially unviable areas. Introduction and objective of the Land Lease Guidelines The project is expected to provide positive benefits to local population who reside in areas where Component 2, Extending Connectivity to rural areas, is implemented, as they will have better and cheaper access to ICT services. Limited space of land will have to be secured by service providers who will carry out the pilot to house towers, masts and sub-stations (no other components are expected to require land acquisition or asset loss). It is expected that all land will be secured through a long-term lease contract1 with land owners/ occupants on a commercial and voluntary basis. It is expected that about 50 – 80 towers/ masts may have to be built under the pilot2 and that not more than 100m2 of land will be necessary to house a tower/mast. Some limited land may also have to be secured for equipment shelters. Where service providers cannot agree with land owners on terms of land lease, they will identify alternative sites to house the needed infrastructure where lease contracts can be agreed on a voluntary basis. The government will not exercise power of eminent domain or provide any assistance for service providers to secure land but will provide assistance to affected land owners/ occupants so they can make a lease contract with a full understanding of the terms of lease and without significant impact on anyone’s livelihood. Land tenure is not fully established in rural Myanmar, and rural population may have informal claims to the land where service providers plan to build infrastructure. Also, non-land owners may gain significant livelihood through collecting natural resources from the land officially or traditionally owned/ occupied by someone else. Care should thus be exercised to clarify land tenure and use issues before a decision is made to determine where infrastructure should be built. This section provides principles and procedures that should be followed by Service Providers in securing long-term land lease, so the project meets the provisions of OP 4.12. . The World Bank Operational Policy 4.12 Involuntary Resettlement requires that the project impacts resulting from loss of land should be avoided or mitigated if unavoidable so the livelihood of affected people will be restored to the pre-project level. It is notable that the policy applies to activities that cause involuntary land take without regard to the source of fund if they are: (a) directly and significantly related to the Bank-assisted project; (b) necessary to achieve its objectives as set forth in the project documents; and (c) carried out, or planned to be carried out, contemporaneously with the project. Land Lease Procedure 1. Initial site inspection and community outreach. 1 Normally, such a lease contract is made over 15 – 20 years. 2 It is expected that 4 – 5 pilots will be implemented. Page 1 of 6 Once pilot sites are identified, the safeguard focal point of the service provider will carry out a site inspection, as part of the initial risk assessment, and assess the salient characteristics of the proposed site and classify risk levels into low, medium or high, using the risk assessment sheet provided in Annex 1 with the relevant section provided below. Those pilots whose risk levels are rated high will not be implemented under this project, given the objective of the pilot to serve commercially unviable rural areas, abundance of alternative pilot sites that need the support of the pilot equally or more, and the likely scale of impact that do not warrant the cost to mitigate them. Instead, service provides will explore alternative sites or change the design of the pilot to reduce the risk level down to low or medium. Risk Assessment Sheet Issues Site Sensitivity Rating Low Medium High Land Low population Medium population High population density; acquisition density; tenure rights density; mixed land major human and well-defined; no ownership and tenure settlements; illegal livelihood illegal or mixed land rights; limited cases of occupation or use of land loss use or ownership; no land disputes; some widespread; land cases of land disputes; communal properties; disputes widespread; no communal and/ or no need to extend many communal properties; and/ or no existing core network properties; and/ or need to extend existing expansion of existing core network core network necessary Site inspection should assess, among other issues, whether the pilot is functionally independent of the other networks that may already exist or be under development currently. If the pilot sub-ICT system to be developed under the project requires an expansion of the core ICT network itself, without which the pilot ICT system cannot reach beyond the confines of its own system, the pilot should be redesigned or alternative sites be identified. This is because the extension of the existing core network is considered to be directly and significantly related to the pilot and additional due diligence is required for the extension of the existing core network (which will be carried out outside the pilot). Since such a due diligence requires additional costs and because there are many alternative sites that are also commercially unviable and need support of the pilot, it is considered a more cost effective use of resources that the project fund focuses on areas where such a “linkage� does not exist. Once the site that is eligible for funding is identified, a half-day community outreach will be carried out where local government officials and community members are invited and explained about the pilot – potential benefits, costs of services and limitations, and likely impacts. The safeguard focal point of the service provider may take the lead, together with the public relations experts of the service provider. MCIT township officials will also participate. Where ethnic minorities are present in pilot areas, free, prior and informed consultations and simple participatory social assessment (SA) will be carried out, and their broad community support will be ascertained, as part of the community outreach. Page 2 of 6 Sufficient lead time should be given to communities to ensure a maximum participation of local population. Contact information of the safeguard focal point of the service provider and the safeguard specialist of MCIT will be shared with participants. Copied of a brochure that describes the pilot will also be made available to participating local people. The brochure should be prepared in a language that is easy to understand for local people. 2. Risk screening The safeguard focal point will fill the risk screening sheet provided below to assess risks related to tenure and usage of the land where infrastructure is to be built. The safeguard focal point may or may not carry out another site inspection to fill the screening sheet, depending on the quality and quantity of information collected during the initial site inspection and community outreach. Where it is deemed necessary, the safeguard specialist of MCIT and the World Bank task team may also participate in the field inspection. The relevant parts of the risk screening sheet are attached below, but the following issues will be assessed:  Whether the pilot needs the whole or part of privately owned/ used land to accommodate the infrastructure that needs to be built under the pilot.  Whether only limited land (>200m2) needs to be acquired to build infrastructure?  Whether the private owners/ users have clear tenure rights, or clearly recognizable rights, over the land where infrastructure needs to be built.  Whether the land owners/ users gain significant income (e.g. more than 10% of cash and non- cash income) from the land.  Whether any competing claims exist by the third party to the land.  Whether the land owners/ users reside within the service area of the ICT pilot.  Whether there is any easy and secure way for the safeguard focal point and the land owner/ users to communicate with each other (mobile, mail, etc), and if so, what it is.  Whether the land owner/ users are willing to lease the land.  Whether someone other than the land owners/ users gain significant livelihood from the land.  Whether the construction of infrastructure in the identified sites affect the livelihood of local people in any way. The risk screening sheet, once filled by the safeguard focal point, will be submitted to MCIT for review. The Bank task team may be consulted if necessary. If the MCIT safeguard specialist considers that all elements in the risk screening sheet have been cleared, or, in his/ her opinion, close to be cleared, and sufficient background information is provided to support the decision, the service provider will be instructed to move to land leasing. If, in the opinion of the MCIT safeguard specialist and based on the information provided in the risk screening sheet, some issues in the risk screening sheet cannot be easily and quickly addressed, alternative sites should be explored. 3. Land leasing Based on the sample lease agreement which will be developed during the first phase of the Component 2 when the pilots are designed, the service provider will prepare and negotiate the lease agreement with the land owners/ users. The exact formats of the land lease agreement will be developed during implementation, but they should include, at minimum: Page 3 of 6  Description of the pilot sub-project and the impact  Description of tenure/ use of the land that has to be leased to house infrastructure, including customary use by non-owners for livelihood and/ or sacred/ spiritual purposes  Duration and fees of lease  Assessment of livelihood impacts as a result of the lease, if any, and compensation for livelihood loss.  Names of land owners/ users who have legal or recognizable rights to and derive livelihood from the lease land  Contact information for inquires and grievances Such a lease contract may be developed for each individual who has legal or customary rights to the lease land, or may be developed as a collective agreement between the service provider and affected people. The format of land lease agreement will be developed prior to the commencement of the pilot, which will be a legal covenant under the Financing Agreement. If functioning land market exists in the pilot area, the lease fees may be set at the prevailing market values. If land markets are underdeveloped in the pilot area, as will be the case for most pilot sites, the lease fees should be set that will be broadly sufficient to cover the long-term livelihood loss as a result of the leasing. The service provider should also agree with those who have formal or indigenous rights to and derive livelihood from the land on the terms of compensation for loss of livelihood. At the beginning of the negotiation, the land owners/ users should be informed of the contact information of the safeguard focal point and external relations experts of the service provider and the safeguard specialist of the MCIT. They should also be informed of the contact information of the World Bank Myanmar Country Office and encouraged to contact the World Bank if they need additional information or clarification. The signed lease agreement, or a note that demonstrates that the negotiation has proceed to an advanced stage, should be submitted to MCIT safeguard focal point, before the service provider is permitted to move to the next stage. 4. Desk and Field Appraisal The desk and field appraisal will be carried out jointly by the safeguard focal point of the service provider and MCIT safeguard specialist. If necessary, the Bank task team may also participate. The risk screening sheet attached below will be used during the field appraisal, and issues assessed under the risk screening will be verified and those related to the lease agreements will be newly assessed:  Whether the signed lease agreements are legally valid and address all elements of the sample lease agreement provided in the pilot design documents.  Whether the contact information recorded in the checklist and provided in the lease agreement are the same and whether land owners/ users are actually reachable through the contact information.  Based on the face to face interview, whether land owners/ users fully understand the terms and conditions spelled out in, as well as the consequence of, the lease.  Whether the lease fees are broadly reasonable.  Whether all third parties that may use the land to gain livelihood are also compensated, and whether the compensation is broadly reasonable to mitigate negative impact.  Whether clear and affordable monitoring mechanisms are established.  Whether land owners/ users are aware of the contact information of the external relations of the service provider, safeguard specialist of MCIT and the World Bank. Page 4 of 6 Those issues which are found to be outstanding at the time of risk screening should be clarified and resolved during the desk and field appraisal. It is expected that the field appraisal will normally be completed within three days. At the completion of the desk and field appraisal, an appraisal report will be prepared by the safeguard specialist of the MCIT. The format of the appraisal report will be developed as part of the design of the pilot projects. If, as a result of the desk and field appraisal, it is confirmed that the lease agreement is legally valid and all requirements under this ESMF have been adequately addressed, MCIT safeguard specialist will provide clearance to the signing of respective works contracts that will require leasing of the land. Safeguard clearance by the Bank will also be required for the first 10 such contracts – signing of relevant works contracts will not be allowed until the Bank clears the lease agreement and the appraisal report, on top of the clearance of MCIT safeguard specialist. The appraisal report should be kept by the service provider for review by the Bank during missions. 5. Monitoring and evaluation The safeguard focal point of the service provider is responsible for the monitoring of the implementation of lease agreement. S/he should visit the pilot site at least once a month for the first six months of the commencement of civil works, and submit the monitoring report to MCIT as part of the biannual progress report. Subsequently, the monitoring should be based on field visit of randomly selected pilots. Not only the legal parts of lease agreements but also various social impacts due to the implementation of pilots will be monitored, including the loss of livelihood of any individual who may hitherto had derived livelihood from the leased land. The safeguard focal point of the service provider, in consultation with MCIT safeguard specialist and the WB task team, should swiftly address issues as have been identified. At the end of the pilot, the safeguard focal point will carry out the evaluation of the land lease. Those issues provided in the checklist attached at the end of this annex will be used in the evaluation. If it is found that significant impacts remain to be addressed, they will be duly reported in the evaluation report and measures to address them will be duly implemented. The Financing Agreement will include a clause that requires all outstanding issues provided in the checklist would be cleared by the closure of the project. 6. Grievance redress mechanism It is expected that most grievances that land owners/ users may have will be addressed during the field appraisal and through the monthly field visits by safeguard focal point. Nonetheless, local people in the pilot site will be informed of the contact information of the MCIT staff at the township and encouraged to contact them for help. Anyone who has grievances will be encouraged to contact the public relations of the service provider and safeguard specialist of MCIT for help and intervention. In the event that s/he is not satisfied with the measures taken by the service provider or MCIT, s/he should contact the World Bank for clarification. Their contact information will be provided during the community outreach and also on a brochure of pilot that will be made available at local village chief’s office. Page 5 of 6 Risk screening sheet Yes/No answers and bullet lists preferred except where descriptive detail is essential. Some questions may only be confirmed during field appraisal Does the pilot need any non-governmental land to house infrastructure? Will the land be leased from private entities? If so, how large is the size of land needed? Any infrastructure need land > 200m2 per site? Does someone need to physically relocate in order to implement the pilot? Is land lease contract already in place and adequately address all aspects provided in the checklist in this annex? Is the lease agreement legally valid and enforceable? Is the lease agreement signed by the land owner/ occupants? Do the land owners/ users clearly understand the terms of lease agreement? Are the lease fees reasonable? Are the land owner/ users willing to lease the land Does anyone have recognizable (even if not fully legal) pre-existing claims to the land where infrastructure will be housed? Is tenure/ titles of the land where infrastructure will be built legal and solid? Is there an easy and secure means of communication that allows land owners/ users and the service providers to contact each other? Does the lease agreement include contact information of land owners and can they be reached and confirm their informed consent to lease agreement? Does the lease agreement also include compensation for livelihood loss of all traditional users with recognizable communal rights to the land, and if so, is the level of compensation adequate? Will anyone other than the formal land owner/occupant use the land for livelihood? Will anyone lose significant livelihood (e.g. more than 10% of cash and non-cash income) as a result of the land lease, and if so, roughly how many are they? Will the construction of infrastructure in the identified sites affect the livelihood of local people? Do land owners/ users reside within the service area of the ICT pilot. Who will monitor the implementation of lease contract? Page 6 of 6