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Communal land

_HOR0855. Photograph by Oxfam GB Asia. Licensed under Creative Commons Attribution-NonCommercial-NoDerivs 2.0.

Seuon Roan, 38, a resin production community member, looks at the cleared land where his resin trees once stood. The area is part of the Blue Forest, a community forest in O Preah village, O Khreang Commune, Kratie province. Photo by Oxfam GB Asia, taken on 1 January 2000. Licensed under Creative Commons Attribution-NonCommercial-NoDerivs 2.0.

Communal land rights take multiple forms in Cambodia, the most prominent of which is the communal title available to indigenous communities. Indigenous communities in Cambodia have strong cultural, spiritual and economic ties to the land with distinct cultural identities. Although the Cambodian government recognizes communal land rights, the process of issuing land titles for indigenous communities has been slow.1 Some communities have worked for 4–8 years with significant help from NGOs before achieving title. NGOs have claimed that this slow progress has resulted in the degradation of the land and natural resources.2

Under the 2001 Land Law, there are two types of communal or collective property: monastery property and indigenous community property. Monastery property constitutes the land and structures within Buddhist monasteries belonging to the Buddhist religion.3 It cannot be sold, exchanged or donated, nor can it be legally possessed by another. However, the land may be rented or sharecropped provided the income is used strictly for religious purposes.4

Indigenous community property

Indigenous community property is land used by an indigenous community and for which they can apply for communal titles. (Communal land is typically made up of a number of separate areas that each receive a separate title). Land held in communal title cannot be sold or mortgaged. It is a useful approach to protect an indigenous people’s spirit forest, graveyards and important ancestral lands for future generations.

The Land Law defines an indigenous community as one whose members manifest ethnic, social, cultural and economic unity; practice a traditional lifestyle; and cultivate lands under customary rules of collective use.5 Cambodia has 24 indigenous peoples, who together have an estimated 450–500 communities.6 It is generally accepted that they represent 1–2 percent of the Cambodian population, but their numbers have never been clearly measured in a national census.7

Indigenous communities often cannot speak or read Khmer. Researchers have stated that this, coupled with traditionally limited participation in national politics, hinders their capacity to obtain collective title.8

Obtaining collective title

While the Land Law of 2001 introduced communal title, the process of granting title wasn’t clear. Clarity came in 2009 with the Sub-decree No. 83 Procedure of Registration of Land of Indigenous Communities9 and the Circular of the Ministry of Rural Development on the Procedures and Methods of Implementing National Policy on the Development and Identification of an Indigenous Community.

Sub-decree No.83 provides the framework by which indigenous communities can acquire collective title. There are 3 stages:

  1. The Ministry of Rural Development issues a letter of recognition that the community is an indigenous community. (As of February 2017, 119 communities had achieved this.)10
  2. The Ministry of Interior registers the community as a legal entity. (102 communities have achieved this.)
  3. The Ministry of Land Management, Urban Planning and Construction surveys the land and ultimately issues titles. (54 communities have made application at this stage; 14 have been granted land titles.)

The process requires that the community have bylaws and internal regulations governing land use and management.11

The Sub-decree sets out what land can be registered as communal:

  1. State Private Land such as:
    • Residential land or Land on which the community has built houses
    • Land on which the community practices traditional agriculture such as actual​ cultivated land, rice and farm land, and
  1. State Public Land that has already been registered with the State such as:
    • Reserved land necessary for sifting cultivation which has been recognized by administrative authorities and agreed by the neighbors.
    • Spiritual forest land, can be one or more plots, for each community shall not exceed seven (07) hectares in total size.
    • Burial ground forest land (cemeteries) ,can be one or more plots, for each community shall not exceed seven (07) hectares in total size.

If communal land is in public state land, a sub-decree is required to change that portion of land to private state land, to allow title to be granted.

Only relatively small areas of forest can be included in communal land titles – up to 14 ha per village.

Profiles: L’Ang, Ratanakiri and Srae Khtum Village, Srae Khtum, Mondulkiri

The first community to obtain collective title, L’Ang, Ratanakiri province is home to an ethnic ToumPoun community consisting of 101 families. Their titles cover 1,454 hectares of land, and the titling process entailed five years of collaboration with NGO Development Partnership in Action.

L’Ang’s success in achieving collective title has been attributed by researchers to its distance from ELCs and protected areas.12 In June 2013,13 Collective titles for 1,084 hectares of a Bunong community in Srae Khtum, Mondulkiri province were awarded to 102 families. The community overlapped with multiple land concessions and a protected area, and faced significant external pressure. After the arrival of Order 01 surveyors, 12 families, most of whom were ethnic Khmer, accepted private title. The village received information about collective title and support from an NGO.14

Challenges to protecting indigenous community rights

The government has committed to protecting indigenous rights and culture.15 Even so, researchers and NGOs have raised concerns about the protection of indigenous community land rights. The delay between the Land Law of 2001 and the 2009 Sub-decree has a big impact: by 2009, according to government figures, at least 1.2 million16 hectares of land had been granted to economic land concessions (ELCs); NGOs report that 2 million hectares of land had been granted to ELCs.17

The first collective titles were awarded in 2011.18 NGOs have expressed concern that the slow progress can be attributed to the complexity of the process and the asymmetrical power of investors and indigenous communities; the latter often live in natural resource-rich areas.19Further, during the lengthy application process, indigenous communities receive no protection from the risk of an ELC being granted on their land until they have completed the first two steps.20 It is reported by researchers that communities that overlap or exist near concessions face greater difficulty obtaining title.21

There have been concerns that the government’s national titling drive – Order 01 – has undermined the process of issuing collective titles. The program prioritized registration of individual over communal property rights. Officials claimed that community titling was a complex, time-consuming process that would divert resources away from titling efforts across the country.Therefore, the surveying and registration of collective indigenous community property was postponed. Nevertheless, many households in indigenous areas were offered private rather than communal ownership titles.22

At present, once community members obtain individual title, they are unable to obtain collective title over communal land, though the Government plans to create a process for converting individual titles to collective titles.Offering private titles to indigenous communities has become a contentious issue. NGOs report that the practice can cause social division because when members register communal land as private property, they first must formally leave their communities.23After leaving, they are no longer eligible to collectively own indigenous land.

There have been reports of survey teams pressuring families to leave their communities and accept individual titles.24Researchers from Heinrich Boll Cambodia asserted that the practice of misleading and pressuring villagers to accept private titles and thereby forgo claims on communal land was widespread under the Order 01 program.25They claim the government used the titling program to divide communities in the resource-rich regions where indigenous peoples reside.

In addition, it has been reported that under Order 01 indigenous households’ uncultivated land and forest land is often not surveyed by cadastral teams.26Because of this, individuals who accept private titles may lose access to communal spiritual forest land, burial grounds or uncultivated land important to traditional agricultural practices. Worse, there have been reports of companies appropriating unregistered land important to indigenous communities after surveys have ended in contested areas.27

A more recent study of Order 01 did not find evidence of widespread coercion of communities to accept titles.28The report found that in some cases indigenous households accepted private titles for pragmatic reasons, including to protect their property from an immediate threat or to secure credit. The study also noted instances when community members were encouraged to accept individual titles and others where indigenous households did not receive title for all their parcels of land, which subsequently became more vulnerable to appropriation by outsiders.29

The government has acknowledged the criticism of titling in indigenous areas. While denying claims of pressure by survey teams to induce community members to accept private titles,30 officials have made policy commitments to improve indicators related to titling indigenous communal land.31 During 2014–2015, the government planned:

  • that at least 10 indigenous communities are communally titled per year. Government funds are available at step 3 of the process – $30,000 per community for up to 10 communities per year
  • that an interim protective measure is provided to communities who have submitted their applications for communal title
  • that there is a process to allow land held by indigenous people in private title of indigenous peoples to be converted to communal land title.32

The last of these is particularly important in light of Order 01 because it means that those who accept community title may again be eligible for communal title and, by extension, access to communal lands.

Other forms of communal property include community forests and protected community areas. Please see the respective pages for more information on community forest and protected community areas.

Last updated: 26 February 2017

References

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