AFRICAN DEVELOPMENT BANK GROUP
PROJECT : WATER ACCESS SUSTAINABILITY AND SECURITY PROJECT (PSAE)
COUNTRY : MOROCCO
SUMMARY RESETTLEMENT ACTION PLAN (RMP)
Project Name: Water Access Sustainability and Security Programme – Project No.: P-MA-E00-011
AfDB 14
Country : Morocco
Department : RDGN Division: RDGN2
1. INTRODUCTION
At the request of the Moroccan authorities, the African Development Bank will support the implementation of the Water Access Sustainability and Security Project (PSAE) in Morocco.
From an environmental and social perspective, the project is classified in Category 1, given its scale and the main environmental and social impacts identified.
The project implementation requires the expropriation of private land in the public interest. As a result, and in accordance with the African Development Bank (AfDB) policy on involuntary resettlement of populations (Operational Safeguard 2 - OS2), the Moroccan Government must prepare and submit to the Bank a compensation and resettlement plan setting out the principles and procedures for the adoption of compensation and resettlement measures for the project- affected persons, and establishing an approximate budget and indicative implementation schedule. The objectives are to: (i) minimise involuntary resettlement as much as possible; (ii) avoid the destruction of property to the extent possible; and (iii) compensate affected persons to offset the loss of residential land, farmland, buildings and equipment, as well as loss of income.
In accordance with Moroccan Law No. 12/03, drinking water supply (DWS) projects are not subject to an environmental and social impact assessment (ESIA). Similarly, Law No. 7-81 on expropriation in the public interest does not provide for the development of a Resettlement Action Plan (RAP). Nevertheless, ESIAs have been developed based on available technical studies as well as a Resettlement Master Plan, which will contain a description of the principles and procedures governing the expropriation and compensation regime for the development of public-interest infrastructure. That plan will provide the framework for the development of specific RAPs for each sub-project upon completion of the land ownership surveys during the finalisation of the layout. In fact to avoid expropriations, the Office National de l’Electricité et de l’Eau (National Electricity and Water Authority) (ONEE) will review the layout as much as possible, based on the elements of the land ownership surveys at hand. In general, ONEE seeks to install pipes as much as possible in public rights-of-way and will work to avoid encroachment 2
on private property, in order to limit expropriation procedures. ONEE reviews the proposed technical design based on plot inventories, to assess the technical feasibility of avoiding acquisitions as much as possible, particularly for the location of infrastructure, which, based on the experience of ONEE, represents the majority of acquisitions. This approach is consistent with the requirements of Operational Safeguard 2 (OS-2) of the Integrated Safeguards System (ISS). In this regard and as part of technical assistance envisaged, a Social Protection Expert will be recruited. Among other things, this expert will be responsible for preparing full or abbreviated RAPs, according to the data from the land ownership surveys. Of course, these RAPs will be validated, disseminated and implemented, in accordance with the requirements of OS-2 of AfDB’s ISS prior to the works start-up.
The objective of the Master Plan is to describe the principles and procedures governing the expropriation and compensation regime for the realisation of public infrastructure under the programme. It summarises the various management acts and actions undertaken, in accordance with the national regulations on expropriations in the public interest, and the requirements of the African Development Bank policy on land acquisition and involuntary resettlement. The Resettlement Master Plan clarifies the rules that apply to the identification of persons who are likely to be affected by the implementation of project activities. It also includes an analysis of the economic and social consequences resulting from the implementation of project activities that may result in land or property being taken away from people, especially the most vulnerable.
2. PROJECT DESCRIPTION
2.1 Project Objectives
The project for the preservation of drinking water resources consists in strengthening and securing access to drinking water in urban and rural agglomerations in the Guercif, Zagora, Al Hoceima, Tangier and Beni Mellal provinces. It aims to meet the growing drinking and industrial water needs in these areas by 2040. The programme is part of the strategy of the Kingdom of Morocco to mobilise water and streamline its use by 2030.
2.2 Project Components
The project consists of the following main components:
A. Strengthen the drinking water supply of several urban and rural agglomerations;
B. Provide technical support, including validation of studies, works control and supervision, and acquisitions audit.
The different components of each sub-project are presented in the following table:
Table 1 Presentation of Sub-projects Guercif Treatment plant Conventional treatment plant of 2*150 l/s extendible to 450 l/s Raw water pipeline FD DN600 steel pipeline over 20 km Treated water pipeline BP DN 600 and 800 pipeline from the treatment plant to the Guercif arrival reservoir over 60 km Al Hoceima Raw water supply FD DN700 and 600 steel pipeline over of 31 km Zagora Treatment plant Conventional treatment plant of 2*125 l/s extensible to 375 l/s Raw water pipe FD DN 800 steel pipeline over 22 km Treated water pipeline BP DN pipe between 900 and 400 over a distance of 105 km Tangier Raw water supply pipeline DN 1100 mm discharge pipeline over 500 lm and DN 1 200 mm gravity pipe over 12 km 3
Pumping plant (GC and Raw water plant: Q = 1000 l/s, HMT = 28.5 m Equipment) Beni Mellal Treatment plant Installation of an additional pumping unit at the existing raw water pumping plant Extension of the Afourer treatment plant for an additional flow of 190 l/s; Sortie ST – Amont Souk Installation of a BP / FD supply pipe 600 mm in diameter over approximately Sebt pipeline 20.5 km Antenne Oulad Ayad pipe Installation of a PVC supply line DN 500/315 mm in diameter over a total line of about 24.3 km * Connection to the Oulad Zidouh arrival reservoir Amont Souk Sebt pipeline Installation of a PVC 500/400/110 supply line over a total line of about 15 km; – Oulad Zidouh reservoir Construction of a pumping plant (Q=6l/s; HMT=100 m)
2.3 Project Impact Area and Beneficiaries
The project area comprises the regions of Tangier in the north-west of the country (1.3 million inhabitants, the majority of whom live in urban areas), Al Hoceima in the extreme north (300,000 inhabitants, of whom only 40% live in urban areas), Guercif in the north-east (300,000 inhabitants, of whom about 60% live in urban areas), Beni Mellal in the centre (250,000 inhabitants) and Zagora in the south-east (350,000 inhabitants, of whom less than 20% live in urban areas).
Overall, the average household size in the project area according to the 2014 census, ranges from 4 (Tangier Province) to 8 (Zagora Province), which falls within the national average of 4.6. The percentage of young people (between the ages of 15 and 59) ranges from 57.2% in Zagora Province to 75.3% in Azilal Province (Beni Mellal sub-project). The multidimensional poverty rate is very heterogeneous and ranges from 2.9% in Tangier Province to 17.3% in Guercif Province.
The regions affected by the project experience water shortage each year during summer. Water shortage has become acute recently and public protests are becoming increasingly frequent, with people calling on the Government to find solutions rapidly. The most affected regions are in the South (Zagora) and in the East (Guercif), because of their arid climate. In addition to the arid regions, other areas with high and average rainfall, such as Al Hoceima, Tangier and Beni Mellal, also complain about shortage of drinking water resources owing to their strong industrial and tourism development (such as the new industrial city known as "Mohamed VI Tangier Tech" and the Tadla agropole in Beni Mellal), resulting in increased demand for drinking water.
2.4 Project Cost
The total cost of the project, net of taxes and customs duties, is estimated at UA 194 million or MAD 2.594 billion. The portion to be financed by the Bank (AfDB window and Africa Growing Together Fund - AGTF) amounts to about UA 97.0 million or MAD 1 296.9 million.
3. POTENTIAL IMPACTS
3.1 Sources of Impact
Although the ONEE-Water Branch (referred to as ONEE-BE in this document) has made every effort to ensure that these expropriations are minimised (making maximum use of the public domain), programme execution requires the expropriation of private land in the public interest. ONEE has opted to lay pipes in public rights-of-way as much as possible, avoiding encroachment on private property, in order to limit expropriation procedures. It reviews the 4 technical design proposed based on plot inventories, to assess the technical feasibility of avoiding acquisitions as much as possible, in particular for the location of infrastructure, which based on its experience represents the majority of acquisitions. This approach is consistent with the requirements of ISS Operational Safeguard 2.
These expropriations will be carried out for both the construction of water storage and treatment plants (6 hectares of useful area) and the laying of pipes (5 m wide on a total line of about 300 km necessary).
It is worth noting that laying of pipes on private land will amount to nothing but temporary occupation. This leaves the affected persons the opportunity to continue using the land after the pipes have been laid, after receiving compensation for the loss suffered.
3.2 Positive Impacts of the Project on the Human Environment
Overall, the positive impacts identified during construction and operation are: (i) creation of direct and indirect jobs; (ii) securing drinking water supply in Gercif, Zagora, Tangier and Beni Mella; (iii) improving the living and sanitary conditions of the populations concerned; (iv) water savings (Tangier); and (v) preservation of resources from pollution (Tangier). Fortunately, there is no physical displacement or a total permanent loss of livelihood. The property affected is exclusively farmland.
From a social standpoint, the main expected project benefit is the increase in the quantitative and qualitative availability of water, which will help to improve the living conditions and health of the people, in particular the health of children, thanks to the reduction of waterborne diseases.
On the economic front, this project will contribute to poverty reduction by facilitating the creation of temporary jobs during construction and some other additional permanent jobs for the operation of the ONEE-Water Branch facilities. It will also foster the economic development of the region (creation of industrial and tourism units). In addition, the availability of water will have a favourable impact on the consolidation and emergence of economic activities in the regions served (tourism, services and industry), in urban areas, as well as income-generating activities (IGAs).
The project will also have a direct impact on women, who represent about 51% of the Moroccan population and are the primary users of water for household chores, among other things. The task of fetching water (especially in peri-urban and rural areas) will be reduced and will allow them to develop microeconomic activities. The private sector will also be affected by the positive project spin-offs through the creation of opportunities during construction and the additional volume of drinking water that will be generated, thanks to which private operators in the tourism and industrial sector will be able to expand their activities.
3.3 Negative Impacts of the Project on the Human Environment
The main negative impact that justifies the Category 1 classification of this project concerns the expropriation of land needed for the right-of-way of the water supply pipeline. Although ONEE is making efforts to minimise the impact on private land, this project will still affect more than 200 people. Under the programme, 6 hectares of communal and collective land are expected to be acquired for the Zagora and Guercif treatment plants. For the laying of pipes, a 5 m right-of-way over a total line of about 300 km will be needed. Nonetheless, this expropriation of land will be without the displacement of people (no housing is concerned).
As far as the natural environment is concerned, the negative impacts resulting from the construction phase will be low-to-average, and will concern air pollution from dust and fumes 5 generated by machinery and construction works; risks of soil and water pollution by liquid and solid waste from construction sites; destruction of the vegetation found in the right-of-way of the pipeline, reservoirs, etc. The construction of pumping stations and reservoirs, the laying of pipes and the movement of machinery and workers during the construction phase might cause soil compaction and loss of crop yield if the initial conditions are not restored following the rehabilitation of the area.
4. INVOLUNTARY RESETTLEMENT REGULATORY FRAMEWORK
4.1 Land Tenure System
Land tenure in Morocco is characterised by a multitude of systems, which can be grouped into two categories:
- State systems, representing 3% of the useful agricultural area (UAA) and composed of the public domain of the State and public communities, the private domain of the State and public communities, and the forest estate. Management of the forest estate is entrusted to the water and forest administration (High Commission for Water and Forests and the Fight against Desertification).
- Non-State systems, consisting of: (i) habous properties (1% of UAA), which are immovable properties acquired by the Muslim founder for the enjoyment of categories of beneficiaries that he designates. Habous properties have two main characteristics: perpetuity and immunity from seizure. However, they are alienable and may be expropriated in the public interest; (ii) collective lands (17% of the UAA); (iii) guich lands (3% of UAA); (iv) privately owned properties (or melk), representing 76% of UAA. This is private land ownership in the sense of Roman law (usus, abusus, fructus). Melk lands belong to one or more people who have full enjoyment thereof. Privately owned property is divided into moulkiya, which is untitled property whose ownership is demonstrated by documents issued by adouls (majority of cases); and titled property, which is registered with a number at the land registry.
The project requires the acquisition of a set of plots whose number and status are determined during the plot inventories.
4.2 Moroccan Law Governing Land Acquisition and Resettlement
Expropriation in the public interest is strictly regulated. Protection of property is a constitutional principle. Although the right of ownership and freedom of enterprise remain guaranteed, the law can limit the scope and exercise thereof if necessary to meet the economic and social development needs of the nation.
However, the right of ownership may be ceded only in the public interest and in accordance with the regulations in force.
Expropriation in the public interest, undertaken under Law No. 7-81, promulgated by Dahir No. 1-81-254 of 6 May 1982 and published in Official Gazette No. 3685 of 15 June 1982, “may be undertaken only in the manner prescribed by this Law, subject to derogations therefrom prescribed in whole or in part by special legislation”.
In fact, with the exception of the public domain of the State and certain immovable property specified by law, such as mosques, shrines and cemeteries, the public domain and military facilities, all real estate falling under the different land systems existing in Morocco may be 6 alienable either by acquisition by mutual agreement, by expropriation in the public interest, or by diversion (in the case of the forest estate).
The public domain of the State may be occupied temporarily under an agreement or other legal document drawn up by the agency administering it.
Plots in the private domain of the State and the public communities are subject to:
- An amicable acquisition agreement with the Land Tenure Department of the Ministry of Finance;
- A procedure of incorporation into the public domain of the State by decree, set out in a decision to earmark these plots for the public domain, and a report of surrender to the ONEE as operator.
The forest estate may be acquired in one of the following forms: (i) diversion by decree on the advice of an Administrative Commission; (ii) real estate transaction; and (iii) temporary occupation sanctioned by a temporary occupancy order.
When the expropriated properties are collective properties, a guich or habous, the expropriation process is undertaken amicably according to the regulations governing these systems.
Plots belonging to private individuals may be acquired through expropriation in the public interest, either amicably or by judicial means.
The expropriation procedure, which can only concern immovable properties and all the rights thereto, is designed to maintain a balance between the interests of the owners and those of the public. This legislative concern is reflected in the conditions and obligations dictated by law, compelling the expropriating authority to fulfil, in a comprehensive manner, specific formalities set out clearly in time and in space, so that the rightful claimants can be informed.
This formal process, which also provides the expropriating authority with legal certainty, reflected in the time allocated for the rightful claimants to come forward, has been carefully set up by legislation and is overseen by judges through a specific and well-regulated expropriation procedure.
4.3 Requirements of the African Development Bank for Forced Resettlement
The project must be implemented in line with the requirements of the Integrated Safeguards System (ISS), and in particular Operational Safeguard 2 (OS2) for involuntary resettlement/land acquisition, displacement and compensation of persons. It aims to clarify all issues related to physical and economic displacement not pertaining specifically to land acquisition. The specific objectives of OS2 are to: (i) avoid involuntary resettlement where feasible, or minimise resettlement impacts where involuntary resettlement is deemed unavoidable after all alternative project designs have been explored; (ii) ensure that displaced people are meaningfully consulted and given opportunities to participate in the planning and implementation of resettlement programmes; (iii) ensure that displaced people receive significant resettlement assistance under the project, so that their standards of living, income- earning capacity, production levels and overall means of livelihood are improved beyond pre- project levels; (iv) provide explicit guidance to borrowers on the conditions that need to be met regarding involuntary resettlement issues in Bank operations to mitigate the negative impacts of displacement and resettlement, actively facilitate social development and establish a sustainable economy and society; and (v) guard against poorly prepared and implemented 7
resettlement plans by setting up a mechanism for monitoring the performance of involuntary resettlement programmes in Bank operations and remedying problems as they arise.
The project must also be implemented in line with Operational Safeguard 5 on working conditions, health and safety.
The other relevant Bank policies and guidelines remain applicable as soon as they are triggered under the ISS. These are mainly: (i) the Bank Group Gender Policy (2001) – the Bank Group Gender Strategy 2014-2018 (2014); (ii) the Framework for Enhanced Engagement with Civil Society Organizations (2012); (iii) the Bank Group Policy on Disclosure and Access to Information (2012); (iv) the Handbook on Stakeholder Consultation and Participation in AfDB Operations (2001); (v) the Bank’s Population Policy and Strategy for Implementation (2002); and (vi) the Environmental and Social Assessment Procedures for AfDB’s Public Sector Operations (2015).
4.4 Comparative Analysis of Moroccan Law on Expropriation and the Bank’s OS-2 Requirements
Table 2 Comparative Analysis of Moroccan Law on Expropriation and the Bank’s OS-2 Requirements Comparison Criteria Moroccan National Legislation Bank Policy Conformity Eligibility Expected Expected Equivalent Any owner with official or traditional title, without the required supporting documents (moulkiya, title deed), tenants and land users
Publication of an eligibility deadline Expected only in the context of the Expected Equivalent publication of the PDE in the Official Gazette (after which the property concerned cannot be transformed in any way without the authorisation of the expropriating authority) Entry into possession Occurs as soon as an expropriation Compensation Partial. However, whatever the decree is promulgated that the CAE prior to entry scenario, the rightful claimant has determined the amount of the into will be entitled to at least the compensation and that ONEE has possession amount deposited with the CDG deposited the amount of the until the appeal/opposition is compensation for each rightful settled by the competent claimant with the Deposit and authorities. Considering that the Management Fund (CDG). The judge's final decision will be rightful claimant may choose to implemented, this criterion can contest the compensation for any be considered equivalent. reason, under the applicable procedure Compensation before work starts Expected in the context of amicable Expected Partial. It is equivalent subject to agreements based on unit market access to the amounts deposited prices. Do not systematically concern with the CDG and the cases of disagreement over the implementation of related court amount of compensation, incomplete decisions. file, or dispute between rightful claimants. Public consultation and dissemination of Expected Expected Equivalent information System of appeal available to rightful Expected Expected Equivalent claimants Negotiated unit prices reflecting market Expected Expected Equivalent reality 8
Comparison Criteria Moroccan National Legislation Bank Policy Conformity Monitoring system Not expected Expected Not equivalent. However, ONEE has set up an information system that records any request it receives and allows the tracking of the various processing phases for which it is responsible. This project also calls for the provision of technical assistance for the monitoring and evaluation component, which will cover environmental and social aspects, including resettlement. A communication plan will also be part of project implementation. Special attention to vulnerable persons Not expected Expected Not equivalent. Only persons affected by the project who are over age 65 could meet this criterion, as all owners are men. Moroccan regulations, even if they are not specific to vulnerable people, make it possible to respect and promote the protection of vulnerable groups in a way that is adapted to the Moroccan context, in accordance with Point 6 of AfDB’s Integrated Safeguards Policy Statement. A communication component has been incorporated into the project to support the implementation of the plot acquisition plan.
5. ESTIMATION OF DISPLACED PERSONS AND ELIGIBILITY CATEGORIES
5.1 Estimation of Physically Displaced Persons
The project does not involve the resettlement/physical displacement of persons, dwellings or production entities. A statement of appraisal attesting to the status of use, in progress, will confirm this element.
5.2 Estimation of Land Acquisitions
With regard to land acquisition, mainly farmland is affected. It will be possible for the people to continue engaging in their economic activity. As soon as the technical assistance is put in place and the technical layout is finalised, the inventory and the exact identification of the properties and persons affected will be clearly set out for all the sub-components, except that of Beni Mellal.
The plot inventories for the Beni Mellal sub-project led to the identification of 958 persons affected by the expropriation of their land. The socio-economic assessment and consultation of this group will be available by the time the first disbursement under the project is made. As for the Al Hoceima, Guercif, Tangier and Zagora projects, the plot inventories are in progress and the parcel plans will be ready before the first disbursement under the project is made. 9
5.3 Eligibility Criteria for Defining the Different Categories of Persons Affected by the Project
Affected persons are defined under this project as “persons who, as a result of the project, are at risk of losing all or part of their material and non-material assets, such as productive land, rent or sources of income”. They include:
- Owners with official or customary title deeds
- Tenants and land users.
Pursuant to Section 10 of Law No. 7-81, the deed of transferability shall be preceded by an administrative investigation. For this purpose, the draft of the said deed: (i) is published in the Official Gazette and in one or more newspapers authorised to receive legal notices; (ii) is filed, along with a plan, at the city hall of the municipality, where the interested parties may consult it and submit their comments over a period of two months, from the date of its publication in the Official Gazette.
During the period fixed by Section 10 of Law No. 7-81, the interested parties shall declare all the farmers, tenants and other holders of rights on the immovable property, failing which they shall be solely liable for any compensation that may be claimed. All other third parties are required, within the same period, to come forward, failing which they might forfeit of all rights. The expropriating authority is required to obtain an attestation from the land ownership registrar showing the status of the holders of real rights listed in the land registers. This attestation can be collective.
5.4 Eligibility Deadline
According to Moroccan legislation, the eligibility date is fixed following the publication of the public-interest declaratory instrument in the Official Gazette. For two years thereafter, no construction may be erected, no planting or improvement may be made on the plots located in the area demarcated by the aforementioned legislation without the agreement of the expropriating authority.
In this regard, under the programme as it currently stands, that date will be identified for each sub-component under this condition and will be communicated to all local residents and persons affected by the programme.
6. METHODS OF VALUATION OF THE PROPERTIES AFFECTED
6.1 Method and Procedures for Determining the Value of and Compensation for Affected Properties
For the plots to be acquired, the compensation relating to the market value of the expropriated land is determined based on the area measured by a certified land surveyor (IGT). It is paid to the property owner, in the case of private individuals, and to the custodian in the case of collective land.
When it comes to developed land, the law recognises that all rights holders are entitled to receive compensation, whether they are owners, tenants or occupants, usufructuaries, owners of trees or any other development found on the plots of land expropriated at the time of the declaration of public interest. 10
To that end, regardless of the land tenure system governing the expropriated land, superficial damages and related loss of income will be recorded, and the rightful claimants will be compensated. The site inventory will be made in the presence of the rightful claimants, the local authority and a representative of the expropriating authority.
6.2 Valuation of Affected Assets
The valuation of affected assets is made by an Administrative Valuation Commission (CAE), in accordance with Law No. 7-81 on expropriations. The amount of the compensation, for both the superficial damages and the market value of the land, is negotiated before this Commission. The amount is based on current market prices in the region.
The valuation criteria provided for by law require the parties concerned to adopt an estimate that rules out any speculation: only current and certain damages are considered, including the appreciation and depreciation resulting from “the announcement of the planned project or operation”.
Section 20: Compensation for expropriation shall be determined in accordance with the following rules:
- It can only be paid for current and certain damages caused directly by the expropriation; it cannot extend to doubtful, contingent or indirect damages;
- It is determined by the value of the immovable property on the day of the decision declaring the expropriation, without it being possible to take into account, in the valuation exercise, any constructions, plantings and improvements made, without the agreement of the expropriating party since the publication or notification of the public interest declaratory instrument designating the expropriated properties;
- The compensation so calculated shall not exceed the value of the immovable property on the day of the publication of the deed of transferability or the notification of the public-interest declaratory instrument designating the expropriated properties. The valuation does not take into account any speculative increase that has occurred since the public-interest declaratory instrument. However, in the case where the expropriating authority has not filed, within six months of the publication of the deed of transferability or the notification of the public-interest declaratory instrument designating the expropriated property, the application to have the expropriation declared and the compensation fixed, as well as the application requesting that entry into possession be declared, the value that the compensation for expropriation cannot exceed is the value of the property on the day of filing of the last such application with the Clerk of the Administrative Court;
- If necessary, the compensation shall be modified, depending on the appreciation or depreciation resulting from the non-expropriated portion of the immovable property following the announcement of the proposed project or operation.
Table 1 Unit Prices for Land Acquisition Unit Price per m² Project in MAD Béni Mellal DWS 170 Zagora DWS 120 11
Al-Hoceima City DWS 400 Guercif -Debdou Region DWS 170 Tangier City DWS 500
Table 2 Unit Prices for Compensation for Other Losses Losses Unit Price in MAD Big olive plant 1000 Crops and trees Average olive plant 500 Small olive plant 300 Land attachments (fences, walls, pillars) Compensation of direct value
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7. ORGANISATIONAL PROCEDURES FOR GRANTING RIGHTS
The Moroccan national expropriation procedure comprises two phases:
• An administrative phase, which is fully controlled by the expropriating authority and which may or may not be followed by a judicial phase;
• A judicial phase, which is under the control of the judicial authority, the triggering of which requires formalities for the approval and publication of deeds of transfer (final expropriation decree - DD) by the highest authorities of the State.
7.1 Administrative Procedures
7.1.1 Declaration of Public Interest (DPI)
The declaration of public interest comes in the form of an administrative document known as the draft expropriation decree (PDE), which designates all the properties affected by the expropriation and the projects or operations to be undertaken on these properties. The determination of the properties affected by the expropriation in the declaration of public interest avoids the need for an act of transfer and accelerates the completion of the procedure. It is vital to accurately define the projects or operations to be undertaken on the expropriated properties, since any modification of the use of those properties requires a new declaration of public interest. The declaration of public interest (the PDE) is subject to formalities concerning advertising and posting according to the provisions of the law. The PDE is:
• Published in the Official Gazette and in one or more newspapers authorised to receive legal notices;
• Filed, at the city hall of the place concerned, along with a plan showing the location of the properties affected by the expropriation and a comments register. The interested parties may consult them and record their comments in the aforementioned register over a period of two months, from the date of its publication in the Official Gazette.
Upon publication of the declaratory instrument, the properties in question may not be the transformed in any way without the authorisation of the expropriating party: a general easement that proscribes any modification to the inventory will be placed on the properties designated in the declaration of public interest. Therefore, the maximum duration of the effects of the declaration of public interest as set by law is two (2) years. If within that period the transfer of ownership is not concluded amicably or requested of a judge by the expropriating authority, the whole expropriation procedure must be started over.
7.1.2 Administrative Investigation
The administrative investigation opens with the publication of the PDE in the Official Gazette, followed by the opening of a register for comments available at the city hall of the concerned, drawn up, initialled and closed by the head of the municipal council following the two-month posting period. Law No. 7-81, through this public investigation procedure, gives the owners and rightful claimants the two-month period to declare, in the above-mentioned comments register, the names of all the farmers, tenants and other holders of real rights over the expropriated property, otherwise, "they shall be solely liable towards these persons for any compensation that they may claim". Beyond that period, and especially when the property is 13 not registered, the rights of undeclared third parties shall be forfeited and any claim shall become inadmissible, except for the possibility of making voluntary intervention before the Administrative Court when the request for transfer of ownership request is being heard.
Thus, the administrative investigation is used to collect any objections raised against the public interest of the project and the conditions of its realisation, and to reveal the holders of rights over the immovable property affected by the operation.
During the investigation, the expropriating authority is also required to submit the draft expropriation decree (PDE) accompanied by an appraisal plan showing the pieces of land affected by the expropriation to:
• The Clerk of the Administrative Court concerned, for the registration of the expropriated properties not listed in the special register; and
• The land registry concerned for inclusion in the land titles register (for registered properties) or in the oppositions register (for properties in the process of registration).
In view of this filing, the land ownership registrar is required to issue to the expropriating party a certificate attesting that the mention of the draft deed was recorded in the land titles register or in the oppositions register. The Clerk will provide the same registration attestation to the expropriating authority for unregistered immovable property.
7.1.3 Temporary Land Occupation
This preliminary step to entry into possession of the land by expropriation or by any other procedure is initiated under Law No. 7-81 on expropriation in the public interest and temporary occupation. It is sanctioned by a ministerial order for temporary occupation (AOT) sent to the local authorities to notify the owners and rightful claimants thereof. The validity period of the temporary occupation order is 5 (five) years.
The phase of temporary possession of land is intended to facilitate the carrying out of studies and preparatory work, and to temporarily deposit the equipment and materials or to establish a site and roads necessary for the execution of works. In return, the rightful claimant receives compensation for the damages that might be caused by these works.
7.1.4 Determination of Content Subject to Compensation
For the plots to be acquired, the compensation relating to the market value of the expropriated land is determined based on the area measured by a certified land surveyor (IGT). Compensation is paid to the property owner, in the case of private individuals, and to the custodian in the case of collective land, guich or habous.
Regarding developed land, the law recognises that all rights holders (according to the provisions of the Bank’s involuntary displacement policy) are entitled to receive compensation, whether they are owners, tenants or occupants, usufructuaries, owners of trees or any other development situated on pieces of land expropriated at the time of the public-use declaration.
In this regard, regardless of the land tenure system governing the expropriated land, superficial damages and related loss of income will be recorded and the rightful claimants will be compensated. The site inventory will be made in the presence of the rightful claimants, the local authority and a representative of the expropriating authority. 14
7.1.4 Valuation of Affected Property
The valuation of affected property is carried out by an Administrative Valuation Commission (CAE), in accordance with Law No. 7-81 on expropriations. It comprises the following permanent members:
Representatives of the local authorities of the provinces concerned;
Presidents of the municipalities concerned;
Representative of the Registration Department of the Regional Tax Directorate;
Representatives of the Regional Directorates of Lands,
Representatives of the expropriating administrative service;
Representatives of certain decentralised State services (Ministry of the Interior, Ministry of Equipment, Ministry of Agriculture and Maritime Fisheries, Directorate of Urban Planning, etc.); and
Representative of traditional authorities.
The Commission negotiates the amount of compensation both for superficial damage and for the market value (commercial value). This amount is determined based on current market prices in the region.
As prescribed by law, the valuation criteria require the parties concerned to adopt an estimate that excludes all speculation: only present and undisputed damage is taken into account, including the appreciation or depreciation following publication of the “notice concerning the projected facility or operation".
7.1.5 Amicable Agreement
The expropriation procedure provides for the possibility of reaching an amicable agreement between the owner and the expropriating authority, if there is an agreement on the amount of compensation. This agreement is concretised by the signing of the text of the Amicable Agreement, which goes to the local authority and is lodged at the land registry for the transfer of property, after which the expropriating authority pays the totality of the compensation agreed upon to the rightful claimants.
7.1.6 Deed of Transferability
The deed of transferability or final expropriation decree (DD), which corresponds to the PDE that served as the declaration of public interest, is established by the expropriating authority and submitted to the Head of Government for approval on the proposal of the Minister concerned (or the line Ministry of the expropriating authority) after endorsement by the Minister of the Interior. The deed of transferability must be taken within two years after the publication of the declaration of public interest whose effects it extends. If it is not taken within this timeframe, the deed declaring the public interest will lapse.
With respect to developed land, the law recognises that all right holders (according to the provisions of the AfDB Involuntary Resettlement Policy) are entitled to compensation, whether they are owners, tenants or occupants, usufructuaries, owners of trees or of any other existing development on the expropriated parcels of land at the time of the declaration of public interest. 15
To that end, regardless of the land tenure arrangement pertaining to the expropriated land, superficial damage and the related loss of income will be recognised and the rightful claimants compensated. The inventory shall be carried out in the presence of the rightful claimants, the local authority, and the representative of the expropriating authority.
7.1.7 Depositing of Compensation at the Deposit and Management Fund (CDG)
If the amounts of compensation determined by the CAE Commission during the administrative phase are not directly received by the expropriated persons under an amicable agreement, they shall be deposited at the Deposit and Management Fund (CDG) by the expropriating authority. This deposit shall become a mandatory public policy provision, not subject to any waiver or mitigation measures. By their binding and mandatory nature, such fund deposits are not simple provisions on debts but are comparable to the voluntary requisition of funds of the expropriating authority by CDG. It is a secure procedure, both to safeguard public funds from dilatory tactics and protect the beneficiaries from misappropriations or fraudulent actions of others.
7.2 Means of Redress
In the event of failure to reach an amicable settlement, there are other remedies: (i) an administrative remedy before the expropriating body’s supervisory authority in the case of an amicable renegotiation; (ii) a remedy through the Diwan el Madhalime (intermediation and specific remedy body); and (iii) where necessary, a court remedy.
7.3 Judicial Procedures
The litigation phase requires the prior approval and publication of the deed of transferability, the final expropriation decree (DD). Thus, once the DD is published and the compensation not settled amicably is deposited at CDG, requests for taking of possession (PP) and transfer of property (TP) are lodged at the Administrative Court for plots in respect of which no amicable agreement was reached. This phase comprises four stages: taking possession, transfer of property, determination of compensation and the release of deposits to the rightful claimants.
The expropriating authority must refer the case to the High Court. Two months after the referral, the following arrangements are made: (i) a site visit to the plot; and (ii) a meeting between the two parties. A hearing is scheduled after the site visit with the two parties. The judge grants the expropriated party and expropriating authority 8 days within which to reach an amicable agreement, otherwise he/she shall determine the compensation by court order.
In general, any person affected by the project may file an appeal. The court receives the complaints and examines the procedures followed, before delivering its decision.
7.3.3 Taking Possession Pronounced by the Judge
The judge orders the taking of possession of expropriated land after confirmation of the public interest and the effective depositing by the expropriating authority of the provisional compensation determined by the Administrative Valuation Commission (CAE) during the administrative phase.
The judge may only refuse authorisation to take possession of the land on grounds that the procedure is null and void, and that may occur only if: (i) the project is not recognised as being in the public interest; and (ii) he/she detects any formal irregularity in the procedure (administrative phase) initiated by the expropriating authority. 16
Thus, the order to take possession of expropriated land is subject to strict compliance with the required formalities. Law No. 7-81 stipulates that works on expropriated land may start as soon as the judge's decision to take possession is delivered.
7.3.4 Determination of the Compensation Entitlement by the Judge
The judicial authority responsible for assessing the amount of compensation may maintain the provisional compensation proposed as such by the expropriating authority in the attempt to reach an amicable settlement. However, expropriated persons may challenge the amount of the provisional compensation before the judge, who may reassess such compensation or seek assistance from experts, whenever a valuation difficulty arises.
7.3.5 Property Transfer
Property transfer is the final stage of expropriation. It may be decided upon within a short time by the judge, when there is no opposition. However, it takes longer when the expropriated person and/or expropriating authority has failed to reach an agreement on the compensation amount, or if the expropriated property is facing opposition from third parties, as recorded in the comments register during the administrative investigation.
7.3.6 Release of Compensation to Rightful Claimants
Whenever a final decision to transfer property is delivered and the necessary formalities for advertising and posting of public notices have been completed, the deposited compensation is officially released to the rightful claimants.
8 IMPLEMENTATION SCHEDULE
8.1 Institutional Arrangements
ONEE must ensure that land acquisition is carried out in compliance with the requirements of national regulations in force and those of AfDB Operational Safeguard 2 (OS 2)
DAJ is responsible for the supervision and monitoring of operations concerning displacement, compensation, redress and conflict resolution. This Directorate has an operational link with the technical and administrative departments, and consequently maintains external relations with the government services, lawyers, courts and other bodies concerned. It is also responsible for planning and implementing: (i) acquisition operations to secure the necessary land for the project implementation; (ii) expropriation and clearing of the right-of-way in general; and (iii) programming and management of judicial and contentious matters.
Following closure of the public investigation and the review of the comments in the comments register received from the municipalities in which the draft expropriation decree was posted for two months, ONEE begins to prepare the files of the final expropriation decrees for introduction into the channels that would lead to their approval and publication at the line ministry. The line ministry contacts the Ministry of Interior and the Secretariat General of the Government in order to initiate process.
To this end, in parallel with the compensation process initiated and pursued by ONEE Regional Services, the Central Directorate transmits to the line ministry an expropriation file comprising all the documents produced during the administrative phase, namely the Draft Final Decree (DD); the Official Gazette and the newspaper that published the declaration of public interest (Draft Decree); attestation of entry of the draft decrees in the land title or in the oppositions register and administrative certificate issued by the Clerk concerning unregistered landed 17 properties; the comments register and the attestations of its display and closure signed by the local authority; ONEE's responses to the petitions, possibly recorded in the comments register.
8.2 Responsibility for Implementation
ONEE-Water Branch is the Project Executing Agency. The Technical and Engineering Directorate and the Regional Directorates concerned will be responsible for managing all the project's technical aspects in close cooperation with the other ONEE Directorates. These include the Sanitation and Environment Directorate, for monitoring the implementation of measures to mitigate the project's environmental impacts, the Legal Affairs Directorate (DAJ), for the expropriation component, and the Cooperation and Communication Directorate, for the communication component.
The expropriation and loss compensation component is managed by DAJ, whose responsibilities are as follows:
- Identification, in collaboration with ONEE technical services and the municipalities, of land tenure activities to be carried out for the implementation of the expropriation and compensation programme;
- Conduct of land research at competent bodies to have a clear understanding of the legal and land tenure situation of the plots of land concerned by the expropriation and compensation programme;
- Planning and implementation of the necessary land regularisation operations;
- Preparation of the necessary formalities for the clarification of property rights; preparation of expropriation files on plots for the Conciliation Commission (CC), participation in the deliberations of the CC, recording, payments and monitoring of expropriation files;
- Monitoring of legal files on expropriation in the event of legal proceedings;
- Registration with the revenue office;
- Completion of registration formalities at the property registry; and
- Management of national hereditaments (monitoring sheet, updating, etc.).
In terms of capacity, ONEE staff assigned to monitor the administrative and litigation aspects of the expropriations may be summarised as follows:
- Regional Directorate: Legal and Land Affairs Service - two (2) legal executives per Regional Directorate and one (1) topographer;
- Central Directorate: 8 (eight) officers will be mobilised during the administrative and litigation phases.
9 REDRESS MECHANISMS IN CASE OF COMPLAINTS
9.1 Objectives of Remedies in Case of complaints
The project is expected to have positive social impacts for the local population. Similarly, land expropriated for use by the various programme sub-projects will be acquired within a clearly 18 defined legal framework, with the consent of the population. Moreover, ONEE has put in place a communication plan based on a stakeholder information and consultation process, to enable early detection and resolution of any dissatisfaction or conflict.
In addition, Law No. 7-81 on expropriation in the public interest and temporary occupation provides mechanisms for administrative and legal remedies, where necessary.
9.2 Consensus, Negotiation and Conflict Resolution
9.2.3 Amicable settlement
Land-related complaints may be submitted to ONEE by applicants directly or through local authorities or other State bodies of their choice. These complaints are then forwarded to the regional land operations services at ONEE for review and processing. The complaints are examined and the replies sent within 15 to 25 days, informing the applicants of the measures that ONEE has taken or is planning to take to address their complaints. Registers for recording and monitoring the processing of complaints are available at regional services and accessible for consultation.
9.2.4 Legal Remedies
Legal remedies for expropriation, or for any other reason, may be sought by affected persons and entities, in the following cases:
- Challenge of the claim that the project is in the public interest public, used to justify the land expropriation, or non-acceptance of the procedure applied; and
- Refusal of the unit price adopted or the compensation amount (the ownership transfer judgement, delivered after a written procedure, may be appealed for the sole purpose of reviewing the compensation, within thirty days of its notification).
In this regard, it will be recalled that, on its own, ONEE has decided to shoulder the costs of any legal action undertaken by the rightful claimants. This initiative, which is not required by Moroccan law, makes the appeal procedure socially equitable and fully in line with the requirements of Operational Safeguard 2 (OS 2) of the AfDB Integrated Safeguard System (ISS). At its own expense, ONEE hires the lawyers responsible for handling the court cases brought by rightful claimants and settles all the legal expenses generated by these operations until the transfer of ownership to the Authority.
9.2.5 ONEE’s Own Complaint Management Mechanisms
To further improve the system of handling land expropriation-related complaints, ONEE has set up an information system that records all petitions received by the Authority, and enables the monitoring of various processing phases reserved for the Authority. The detailed reports are edited regularly to show the handling of each recorded petition. Any statements concerning the project may be consulted.
Affected persons can contact ONEE's local centres, which are easily accessible. In addition, ONEE's local teams are in contact with the population and record their grievances. Similarly, grievances submitted to officers of the local authority and rural municipalities, as well as to members of the technical assistance team, are systematically forwarded to ONEE’s local services for processing. Furthermore, during the administrative survey, the list of persons affected by the expropriation is put up in the municipalities and cities concerned and a register 19 made available for the recording of grievances. A statement on the grievances received and the manner in which they were addressed will be prepared and included in the reports submitted to the Bank on a regular basis.
9.2.6 Mechanisms for Managing Additional Grievances
It will be recalled that persons with complaints may submit them to the independent constitutional appeal bodies, namely the National Human Rights Council (CNDH) which has regional commissions, and the Ombudsman (who also has territorial representation). These bodies are responsible for analysing complaints, making necessary investigations and freely helping plaintiffs to obtain redress.
PUBLIC CONSULTATION AND PARTICIPATION
9.3 Notification Procedure
Pursuant to Article 10 of Dahir 1-20-81-254 (6 May 1982) promulgating Law No. 7-81 on expropriation in the public interest and temporary occupation, deed of transferability must be preceded by an administrative investigation. On this basis, the draft deed is:
- Published in the Official Gazette and in one or more newspapers authorised to accept legal notices;
- Filed, accompanied by a plan, with the municipality where interested parties may consult it and submit their comments within two months of the date of publication in the Official Gazette (OG).
The Declaration of Public Interest (DPI) file is submitted for the public investigation lasting two months. During that time, the people’s comments and opposition are recorded before the return of the document to ONEE for possible consideration.
Therefore, potentially affected or interested parties may consult it in a free, prior and informed manner, and write their comments in the above-mentioned register within two months of its publication in the Official Gazette (OG).
9.4 Public Consultation Mechanism
The project beneficiary communities that will be potentially affected by its social impacts, especially the land acquisition, are consulted on many occasions during the various project preparation phases:
All the stakeholders are consulted at ONEE's initiative during the preparation of documents relating to the project’s environmental and social impacts, in keeping with the ISS requirements;
Affected persons were consulted during the expropriation procedure, once during the drawing up of the ownership statement; and then during the public enquiry (administrative investigation) prior to publication of the expropriation decree. The draft declarations of public interest were posted in the localities concerned by the project.
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9.5 Completed Consultations
Under the Beni Mellal sub-component, the project-affected persons (PAPs) were already informed of the project when the plot inventories are established. Overall, there has been no reticence or problem, given that ONEE will carry out the expropriation after the harvest periods. Potentially affected persons will have two months, according to the regulations, to comment officially on the administrative investigation. The phase for detailed consultation and the collection of the observations of potentially affected people will take place later.
9.6 Future Consultations
Affected persons will be consulted as part of the expropriation procedure, once under the public enquiry prior to publication of the expropriation decree and a second time during the administrative investigation, then a third time at the Consultation Commissions, when each affected person will be proposed an amount of compensation as determined by the CAE.
In an effort to enhance the consultation, communication and participation of all actors, a communication plan has been prepared under the AfDB 14 Project and is provided as annex. It will be steered by ONEE's Cooperation and Communication Department. The plan's objective is to provide relevant information that can be understood by the target stakeholders. The purpose of the plan is to provide relevant information to target stakeholders and the population in order to minimise the risk of misunderstanding between the project and stakeholders due to lack of information.
Future consultations will more closely target rightful claimants, since such consultations will be carried out directly by the Conciliation Commissions planned under the expropriation procedure and will focus on expropriation and compensation issues. During these meetings, the rightful claimants: (i) will be able to express their concerns and difficulties, make suggestions and receive the related responses and recommendations; and (ii) will be informed of their rights and the redress systems available to them (see procedures for further details).
10 IMPLEMENTATION SCHEDULE
The general implementation schedule for the different stages is presented in the table below. Since the various projects are at different stages, an overall schedule by main stages has been prepared with specific details per locality, if necessary (Table 5). Since the land acquisition is a prerequisite for the works, DAJ will be responsible for implementing and updating the specific abbreviated resettlement plans (ARPs) by sub-component.
Table 3 Overall ARP Implementation Schedule Stages Responsible Entities Timeline Consultations and communication DR concerned in For all remaining project phases collaboration with DCM- DAJ (ONEE) Triggering of procedures specified in the documents DR concerned (ONEE) and As they are prepared prepared by the technical service and initiation of the Conciliation negotiations Commission Triggering of the amicable settlement process and DR concerned (ONEE) and As soon as the affected persons preparation of expropriation files the Conciliation concerned are notified Commission Triggering of the amicable settlement process and DAJ Process continues from June 2018 preparation of expropriation files Compensation and registration of properties acquired in DR Ongoing process as the files are closed the name of ONEE 21
Stages Responsible Entities Timeline Triggering of the judicial phase by depositing the DAJ On a case-by-case basis surveys on taking possession and transfer of ownership, provision of the required funds and enactment of the expropriation decree Taking possession of property DAJ (ONEE) On a case-by-case basis Monitoring of files under preparation DAJ (ONEE) On a case-by-case basis
11 ESTIMATED BUDGET
The provisional estimated budget is approximately MAD 206 000 000 as detailed in the table below. This budget will be constantly revised and updated as information becomes more accurate.
Table 6 Total Cost Description Estimated Cost in MAD Land compensation 165 000 000 Compensation for loss of livelihood 13 200 000 Operating costs 16 500 000 Costs of administrative and judicial procedure 9 900 000 Technical assistance for the development and implementation of ARPs, 2 000 000 Stakeholder Commitment Plan and Communication Plan. Total Estimates 206 600 000
ONEE will bear the cost of financing the resettlement plan from its own investment budget. An annual appropriation is made for the acquisition of land through the payment of compensation for expropriation and temporary occupation. This appropriation will take into account the progress of the expropriation files for each sub-component.
12 MONITORING AND EVALUATION ARRANGEMENTS
ONEE is responsible for drawing up and monitoring the implementation action plans for land expropriation and compensation. In this capacity, it will ensure that all persons affected by the project and duly identified will be effectively taken into account and compensated in accordance with the terms and conditions set out in this CPR and detailed in the ARPs relating to sub-projects.
DAJ has developed monitoring sheets and mechanisms for land issues. The entire monitoring procedure has been mastered by DAJ and will be applied to this project. DAJ will carry out systematic monitoring and evaluations at four (4) levels:
- Level 1: When the expropriation and temporary occupation heading is budgeted, verify and confirm that the budget allocated for the acquisition of land required by the project is available and planned.
- Level 2: When bidding is launched for works implementation, ensure that all the land tenure action procedures to mobilise the land are initiated by ONEE and by each municipality for its part. This will be documented and summarised in the Resettlement Action Plan (RAP);
- Level 3: Before the start-up of the works, the compensation of the expropriated land is carried out either amicably (the compensation being paid to the rightful claimants and duly justified) or deposited with the CDG (in case of legal action or litigation, with supporting documentation). The process to compensate 22
affected persons must be finalised and documented prior to works start-up on the plots concerned;
- Level 4: Before the commissioning of the facilities, taking possession of all expropriated land is effective either by amicable settlement (the compensation being paid to beneficiaries duly justified by ONEE and by each municipality to the extent it is concerned) or deposited at CDG with a view to taking possession by way of legal proceedings (with supporting documentation).
The progress of land acquisitions and compensation of rightful claimants will be reflected and recorded in the following statements:
▪ Statements A1.1 and A1.2, relating to parcel files (inventory of the land to be acquired and persons affected by the land acquisition);
▪ Statements A2 to A6 relating to the expropriation and temporary occupation procedures, as well as compensation for the plots expropriated and the damage caused by the project, will allow the regular monitoring of the progress of procedures.
Monitoring will focus on the process of identifying affected persons and their compensation. This information will be recorded in Statements A2.2 (for land compensation) and A3.2 (for damage compensation).
The monitoring of expropriations will be carried out and recorded by ONEE’s land acquisition managers. These statements will be updated and made available for any consultation.
13 REFERENCES AND CONTACTS
13.1 References
The preparation of the summary was based on the following documents:
TITLES Author EIA Zagora July 2017 version Groupement Team Maroc – Montmasson EIA of the channelling of raw water from the Ibn Battouta Dam to the Mharhar treatment plant - January 2018 Cabinet Setragec version Environmental impact assessment of the supply of raw Cabinet CID water to the Al Hoceima treatment plant from the planned Wadi Ghiss Dam - Provisional version, undated EIA of drinking water supply to the Souk Sebt area from Cabinet CID the Afourer treatment plant - Final version, undated EIA of the DWS Enhancement Project in the Guercif- Groupement Team Maroc – Montmasson Debdou region - Final version, undated Resettlement Master Plan ONEE Communication Plan ONEE
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13.2 Contacts
For further information, contact:
ONEE-Water Branch:
• Ms Samira BADRI, e-mail: [email protected]
African Development Bank (AfDB)
• Belgacem BENSASSI, Project Officer, email: [email protected]
• Pierre Hassan SANON, Principal Social Development Expert, email: [email protected]
• Beya BCHIR, Principal Environmentalist, email: [email protected]