Presentation On

Cambodia Indigenous Customary Tenure Recognition

Presented By: Mrs. Yun ManExecutive Director Cambodia Indigenous Peoples Organization (C.I.P.O)

Date & Venue: From 15.30-17:00, 21st June at CWD Hotel, Hanoi

Regional Land Forum

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Contents

1. Overall introduction of Cambodia and Indigenous Peoples in Cambodia

2. Relevant National and International Law on Indigenous Customary Tenure Recognition

3. CIPO’s organization experience with the communal titling and the recognition of IP rights

4. Lessons Learned on the key land governance issues and challenges that are affecting Indigenous peoples groups

5. Conclusion 6. Recommendations

Area 181,035 Km²

Population About 13,4 millions

Rural Population

80%

Capital City Phnom Penh

Administration -23 Province- 8 Khan -159 district -1417 commu -14073 village

Indigenous Over 1.4 % (24 group, in 15 pr (190,000 pel) = 600 villages

Overall Introduction • Cambodia is located in Asia on the boarder with Vietnam, Thailand and Laos. • Cambodia is a multi-ethnic society• Cambodia has the smallest ethnic minority population in SE Asia.

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National Law & Policy1. Article 3 of the Cambodian Constitution 1993, which

guarantees all Cambodians the same rights regardless of race, colour, language and religious belief; and Article 44 recognition the collective ownership;

2. Forestry Law (2002), which recognizes the practice of shifting cultivations with registered lands and protects traditional land uses through the community forestry Management plan;

3. Policy and Sub-Decree on the Registration and Right to Use of the Land of Indigenous Community in Cambodia, and National Policy for Development on Indigenous Peoples;

4. Land Law (2001), which recognizes the rights of Indigenous communities to collective ownership of their lands; includes interim measures for the protection of Indigenous lands until formal land titling is in place; and recognizes the practice of shifting cultivations.

5. Protected Areas Law (2008), which affirms State recognition of the secure access to traditional uses, local customs, beliefs and religions of local communities and indigenous ethnic minority groups residing within and adjacent to protected areas (Chapter 6)

1. Ratification of the Convention on Biological Diversity (1992), which is an international legally binding treaty;

2. The UN Declaration of the Rights of Indigenous Peoples, which the government of Cambodia voted in favour of adopting (UN General Assembly, 2007)

Relevant National and International Law on Indigenous Customary Tenure Recognition

International Law

Such provisions on the protection of IP lands are progressive when compared with other land laws in the region, and are intended to reflect the socio-cultural realities and protect the territorial integrity of indigenous areas (2011 Land Law, Article 23)

Under the 2001 Land Law• The lands of indigenous communities include both land currently cultivated and

land reserved for shifting agriculture.

• The 2001 land law also contains important provisions on the protection of IP lands, which allow for communal land titles rather than individual titles, while preventing the sale and transfer of indigenous lands.

• The law specifically states that no outside authority may acquire any rights to lands that belong to indigenous communities and that, in the case of collective ownership, the land can only be sold or transferred only with the agreement from the entire community. Once registered with the Ministry of Interior as legal entities, indigenous communities can apply for registration of collective land title; and until official issuance of collective land titles, communities are allowed to continue to manage their community lands in accordance with their traditional customs.

Under-Sub-Decree No.83 on Procedures of Registration of Land of Indigenous Communities, 24 April 2009.

Detail the procedures the communal land titling (CLT) of indigenous lands, including steps for boundary demarcation, surveying, and public display and 5 types of land entitled for CLT including

1. Residential land,

2. Actual cultivated land,

3. Reserved land for agriculture,

4. Spiritual forest land which is limited to 7 hectares (ha),

5. Burial ground forest land which is limited to 7 hectares.

Aim of CLT:

CLT is a key element in identifying a solution to land conflicts in Cambodia, and at aiming in to preserve and protect indigenous people’s customs, traditions and natural resources in their communities from inappropriate action, improve land use and management in a sustainable manner, enhance livelihood development and help the RGC in land management and prevention of anarchical land abuse.

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CLT procedure can be broken down into four phases which include: Step (1) Self-identification and IP identity determination by Ministry of Rural Development (MRD),Step (2) Indigenous community registration as legal entity by Ministry of Interior (MoI), Step 2.5: Unofficial Map and Internal Rule development Step(3) Communal land title application (Filing Application with all existing doc from step 1to3) and Issuance of Interim Protective Measure by Provincial authority,Step (4) Collective land titling by Land Department of the Ministry of Land Management, Urban, Planning and Construction (MLMUPC).

• CLTs Started pilot project in Dec 2003 by RGC with support by various DPs.

• 3 CLT implemented by DPA, NGOs and RTK land department in 2004 and issued title 2011.

• So far the CLT process had been implemented in 169 Communities in 9 provinces out of 600 indigenous communities a cross the country.

• 117 of 169 ICs have received the letter of IPs identity recognition from MRD, which includes 115 ICs that were registered as legal entity from MOI and 49 ICs have been submitted the collective land tittle application at the cadastral office, however only 43 ICs were accepted by cadastral officer due remaining land conflict and mining;

• 43 of 115 ICs were obtained Interim Protective Measure while 11 of them obtained collective land title.

Indigenous Customary Tenure Recognition achievement progress

CIPO’s organization experience with the communal titling and the recognition of IP rights

CLT Positive FactorsThe title is basically a positive asset as the following: 1.Strong legal supporting documents and well recognition by the government agencies at all level 2.Official protection-Evident based -it serves as a means of defense3. ELC and SLC4. Less land and NRM conflict

Legal documents Community satisfy the title

Clear the boundary and land used demarcation

Clear the boundary and land used management

Official protection 10

CLT Positives Factors• Positive perception change to improve the livelihood development

based on the market trend• Livelihood development are improving

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Yet, the recognition of indigenous rights remains a struggle in practice. There is a gap between existing legal and policy framework and models of development carried out by government and non-government institutions on the ground. This is evidenced by the many problems confronting indigenous peoples in both titled and untitled communities. Sample experience from titled indigenous communities

1.Internal Factors– language barrier – Lack of leadership and management capacity due to limitation of an understand

the role and responsibility as stated in the communities by law and internal rule on land used management

– Problems of community land & NRM governance (continuous transgression of by law and internal rules and other relevant law)

– Limitation of internal capacity to solve the land and forest conflict in using the internal and external mechanism. For instance lack of an understanding on how to used the legal doc to enforcement communal land encroachment /conflict.12

Lessons Learned on the key land governance issues and challenges that are affecting Indigenous peoples groups

Population growth & Livelihood demand

Land and forestry encroachment (Reserved land & spirit forest)

Break of solidarity 1 13

Health Problem

Lessons Learned on the key land governance issues and challenges that are affecting Indigenous peoples groups

External Factors – Land and forest Encroacher from the individuals – Lack of external capacity mechanism, intervention and law enforcement by the

mandate governments agencies and the court to solve the land and forest conflict – Limitation and unclear role of the relevant authority intervention – Free Market Development Trend and Micro-finance which lead for migration – Mediating needs to sell and be private land– Lack of external technical cooperation, and financial support for strengthening

capacity building on land tenure governance security, livelihood development among the relevant stakeholder after titling, for

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Lessons Learned on the key land governance issues and challenges that are affecting Indigenous peoples groups

Overall Challenges of customary recognition experience from untitled

indigenous communities • A key issue is indigenous communities have not been able to prevent companies and powerful

people from encroaching on their lands. Moreover, the progress of communal land titling has been too slow compared to ELC have been granted.

• At the same time, the government, and CSOs do not share common understanding and position, especially the unity among IPOs over the indigenous communal customary land tenure

• Conflicting claim between each of the communities and also near by ELC company and SLC• There is disagreement between sub-national authorities about who is responsible for taking

action for resolving the conflict • Government rely on the community itself to solve all the boundary conflict and prepare the

supporting documentation before it will finalize the CLTs application • The indigenous community without technical and financial support from NGOs and Donors

could not prepare themselves for communal land title application procedure and recognition • Misinterpretation of the law, policy in over arching national legislation, which lead to

systematic misunderstanding of the importance of traditional culture rights over the land and natural resource which extend to the highest level of the Cambodia government

• Conflicting national and policies provision 15

Conclusions In summary, the CLT has been part of the strategy to prevent the land lose, improve efficacy of land use and promote land tenure rights for IPC as well as strengthen community solidarity. •All visited Communities agreed that the title gave a basic security which they did not have before. •All visited Communities agreed that large conflicts with ELCs ceased to exist Nevertheless, still faced structural challenges that need to be solved and improved, through joint monitoring and action by relevant stakeholders, for instance •For communal land security, the community and the committee need to strengthen their leadership management, especially the role and responsibility to implement the by-law and the internal rule and other relevant law for land tenure security in an effective way. • Title has to be combined with social learning, and economic development - cannot

be a stand-alone • Law enforcement need to be implementing

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Overall Recommendation

• Therefore, there is a strong need for them to enhance their discussion and analysis so that a common position can be drawn to collectively demand improvement of governance of IP communal land.

• In addition, there is a need to review land and natural resource conflicts inside titled and untitled communities.

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Recommendations• Gov’t

– Strengthening Law enforcement – Clear and action for intervention mechanism on CLT land conflict – (Systematic) land conflict resolution with ELCs

• DPs (Development Partners )– On going allocation of resources to support the cooperation

between IPs /NGOs and relevant authorities to strengthening CLT – Allocation of resources for improving livelihoods and

infrastructure • NGOs Partner

– community and land governance has to be back-stopped– Support for networking of/between Ips– Support for community development 18

Recommendations• Communities

– Strengthening the implementation of by-law and internal rule on land use and management (equality of land used in effective, proper management/ measure the land distributed)

• Joint Action with stakeholders – problems of collective management have to be

discussed and solved – Create a clear joint mechanism to monitor and deal with

communal land title governance & conflict (follow the existing legal doc)

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Vest Lang = Thanks Your AttentionPhoto Retrieved from NGOF presentation

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