Open Development Cambodia (ODC) has successfully archived our old site on the address: http://archive.opendevelopmentcambodia.net. The address https://opendevelopmentcambodia.net is now used for the “only official website” of Open Development Cambodia (ODC) deployed with newly enhanced features, functionalities, and refreshing presentation.

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 are the rights of 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 ensuring those rights for indigenous communities has been slow.1NGOs have claimed that this 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 communities can apply for a collective title. 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 Representing less than two percent of the population in Cambodia according to census,6 indigenous communities possess distinct cultural identities, and they often do not have the ability to speak or read Khmer. Researchers stated that this, coupled with a traditional lack of participation in the national political sphere, hinders their capacity to obtain collective title.7

Obtaining collective title

Collective ownership provides the same rights as those of private owners unless the property was originally registered as state public property, in which case the land is nontransferable.8 As of October 2014, eight communities of the 167 communities involved in the registration and titling process had obtained collective title as of 2015.9 These communities are primarily located in Mondulkiri and Ratanakiri provinces.10

Sub-decree No.83 on the Registration of Indigenous Community Land provides the framework by which indigenous communities can acquire collective title over communal land. There are five types of indigenous community land: residential, cultivated, reserve land for shifting cultivation, spiritual forestland, and burial ground forestland. Residential and cultivated land can only be issued from registered state private land. Conversely, reserve land for shifting cultivation, spiritual forestland, and burial ground forestland can include land registered as state public land.11

The collective title application process is extensive and time-consuming, involving four overarching steps with three different ministries. Before an indigenous community can apply for title, it must first be identified as a community of traditional culture with the Ministry of Rural Development. Then the indigenous community must formally register as a legal entity with the Ministry of the Interior (MOI). At this point, the community may obtain interim protections, which prohibit the sale, purchase, lease or transfer of the land.12.Finally, the community may request a collective title with the Ministry of Land Management, Urban Planning and Construction (MLMUPC).13 The process requires that the community have bylaws and internal regulations governing land use and management.14 

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 title covers 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.15 In June 2013,16 the collective title to a Bunong community in Srae Khtum, Mondulkiri province was awarded to 102 families over 1,084 hectares. 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.17

Challenges to protecting indigenous community rights

The government has committed to protecting indigenous rights and culture.18 Even so, researchers and NGOs have raised concerns about the protection of indigenous community land rights. Communal property rights were recognized when the Land Law was enacted in 2001, but the framework for obtaining collective title was not established until 2009. By 2009, according to government figures, at least 1.2 million19 hectares of land had been granted to economic land concessions (ELCs); NGOs report that 2 million hectares of land had been granted to ELCs.20

The first collective titles were awarded in 2011.21 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.22 Further, 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.23  It is reported by researchers that communities that overlap or exist near concessions face greater difficulty obtaining title.24

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.25

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.26 After 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.27 Researchers 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.28 They 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.29 Because 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.30

A more recent study of Order 01 did not find evidence of widespread coercion of communities to accept titles.31 The 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.32

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,33 officials have made policy commitments to improve indicators related to titling indigenous communal land.34 During 2014-2015, the government planned to ensure: first, that at least 10 indigenous communities are communally titled per year; second, that an interim protective measure is provided to communities who have submitted their applications for communal title; and third, that a clear instruction is in place to convert private land title of indigenous peoples to communal land title.35 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: 1 November 2015

References

Contact Form

Do you have a question that can help answer? We'll gladly help you

* The idea box couldn't be blank! * The email address is not valid!
ERROR!

Thank you for taking the time to get in contact!