Presentation by Florian Rock for the Second Regional Land Forum

1. CustomaryTenure Policy Briefs
Cambodia, Lao PDR, Myanmar,Viet Nam
Florian Rock
Second Regional Land Forum
May 2018

2. Overview
4 policy briefs were developed to enable a meaningful engagement and policy
dialogue with government institutions and other relevant stakeholders about
challenges and opportunities related to the recognition of customary tenure
Originally prepared in early 2017, latest update in April 2018
Each document has between 9 and 11 pages
Contents:
• Key Messages
• Background
• Regulatory Framework
• Challenges
• Opportunities
• Recommendations andWay Forward

3. Cambodia
Background to CT in Cambodia
• In Cambodia, customary tenure is often linked with land rights of Indigenous Peoples
Communities (IPC); many IPCs live in Protected Areas (PA)
• Khmer rural populations and other communities may depend on CT systems as well
• Communal land titles (CLT) are issued in the case of IPC (so far 25 CLTs issued among 115 IPC);
CLTs are not available for non-IP groups
• Lack of recognition and safeguards of CT rights, especially in the context of large-scale land
investments; one of the most contentious and complicated land related issues
• Internal migration to IP areas and land speculation
• High number of land conflicts, despite conflict resolution attempts

4. Cambodia
Regulatory framework
• In South-EastAsia, only the Philippines and Cambodia fully acknowledge indigenous peoples’
rights to their customary lands in their national legislation
• The Land Law (2001) specifies the rights of IP to land and recognizes the social, spiritual, cultural
and economic values of IP land
• The Law on Forestry (2002) generally recognizes IP traditional rights to natural resources and the
practice of shifting cultivation
• Establishment of “Community Protected Areas” (CPA) in Protected Areas in accordance with the
Protected Areas Law (2008)
• Under development: Environmental and Natural Resources Code dealing with collaborative
management
• Under development: Protected Areas Zoning Guidelines

5. Cambodia
Challenges
• The process of communal land titling is complicated, lengthy and expensive
• Land encroachment by external agents, unclear boundaries with neighbours and informal land
sales create much conflict
• Some IPC lost their customary land and access to essential natural resources
• No system in place to register customary use rights over larger forest areas
• Breakdown of IPCs, even after CLTs have been issued; Individual tenure versus communal tenure

6. Cambodia
Opportunities and recommendations
• Simplification of CLT process coordinated by MLMUPC and UNOHCHR; review of Land Law?
• State land registration has gained momentum
• Surveying and titling of communal land needs to be combined with the process of Systematic
Land Registration and State Land Registration to form a more inclusive and comprehensive
approach
• More emphasis on CT in Protected Areas through zoning approach and collaborative
management (EnvironmentalCode)
• Collaborative ManagementCommunityTitles; possibly encumbrances registered on state land
titles
• Recognition of collective and customary tenure needs to be expanded to non-indigenous
communities

8. Lao PDR
Background to CT in Lao PDR
• The Lao government currently recognizes 49 ethnic groups and 160 sub-groups
• Customary tenure arrangements in Lao PDR exist in all rural villages and across all ethnic groups
• For centuries rural communities have managed common property resources for the benefit of all
community members; created local rules and regulations for the use of these areas
• Customary village land came under increased threats in recent years: a) implementation of the
national shifting cultivation stabilization programme through Land and Forest Allocation, b)
resettlement, c) increased investments in land
• The LaoGovernment allocated numerous land concessions to domestic and foreign investors;
majority of these concession areas are overlapping with community land, thereby causing an
increase in land disputes, and threatening rural livelihoods
• Government policies continue to place high emphasis on forest protection (70% forest coverage
by 2020)

9. Lao PDR
Regulatory framework
• The 2003 Constitution (amended in 2015) describes Lao PDR as a multi-ethnic country and
enshrines equality and the right to protect and promote customs
• Land Law (2003) mandates that land and natural resources belong to the national community
and are managed by the State, with the right to devolve user rights
• Decree on Implementation of the Land Law, No 88/PM of 2008, recognizes customary land
utilization rights for individuals, organizations and village communities, for which a land title or
land certificate can be issued
• MoNRE instruction (No. 6036, 2014) distinguishes collectively owned land from communal land
and gives examples of which types of land can be considered for communal titling
• The Party Resolution on the Enhancement of Land Management and Development (August
2017) recognizes the importance of land as shelter and source of livelihoods for people of
multiple ethnic groups. It points out that “(…) the state must continue to recognize and protect
land use rights held by individuals, entities, collectives and customary land rights”.

10. Lao PDR
Challenges
• Despite revision of land related policies and legislation since 2012, very limited progress on
communal land titling
• No agreed standardized procedure for the registration and adjudication of communal land areas;
no approved communal title format
• Several studies in Lao PDR have shown the important links between land tenure insecurity and
food insecurity
• Despite the existence of legal provisions recognizing customary land rights, if these rights are
not formalized, registered and titled, villagers cannot defend their rights against outsiders,
investors or encroachers; these rights cannot be defended under the current court system in
case of land disputes
• Customary land rights often overlap with what the laws (Land Law and Forestry Law) define as
state land

11. Lao PDR
Opportunities and recommendations
• Land use planning has a long tradition in Lao PDR and today many of the more than 8000 rural
villages have been involved in some sort of LUP activities; contents of LUP include village
regulations
• Villages are the lowest administrative unit and form part of the state organization in Lao PDR;
communal titles can therefore be issued in the name of one village or even several villages
• Legal recognition of “Village Use Forests” and locally established village forest management
plans important for REDD+,WB Forest Carbon Partnership Facility and GCF
• Revision of the Land Law and the Forestry Law
• Comprehensive guidelines on communal land registration and titling need to be finalized; more
piloting is needed, then systematic roll-out
• The next National Socio-Economic Development Plan should contain separate targets for
individual, collective/communal and State land registration; more funding needed

13. Myanmar
Background to CT in Myanmar
• Vast amounts of land in Myanmar are not titled; Cadastral maps do not exist for most parts of
the upland areas
• Major part of the land is held through customary or informal tenure arrangements, which vary
depending on history, geography, resource base, ethnicity, population density or market
integration
• Customary land tenure arrangements in the uplands provide relatively secured access and
socially legitimate rights unless outsiders claim the land
• National policy to eliminate shifting cultivation and systematically encourage terrace cultivation;
swidden = “wastelands”
• The GoM has pro-actively promoted the allocation of large-scale plantations on land classified as
vacant and virgin, with most of it falling under customary tenure, and has accelerated this
process with specific legislation since 2012
• Still many internally displaced people (IDP); need to be re-integrated in customary lands

14. Myanmar
Regulatory framework
• Often antiquated legal frameworks; no adequate mechanisms for the recognition and protection
of customary tenure claims
• The Constitution (2008) states that the Union of Myanmar “is the ultimate owner of all lands and
all natural resources above and below the ground,…”
• Farmland Law (2012) gives farmers land tenure rights for cultivation through the delivery of Land
Use Certificates (LUC); now under revision
• TheVacant, Fallow andVirgin Land (VFV) Management Law (2012) with its definition of “vacant”
and “fallow” land puts customary land, and particularly shifting cultivation land, at high risk of
appropriation; now being amended
• The National Land Use Policy (NLUP), adopted in January 2016, recognizes customary tenure; it
stipulates that CT systems shall be recognized in the National Land Law

15. Myanmar
Challenges
• Until now limited legal protection of customary tenure; this has left communities vulnerable to
land confiscation
• Increase in foreign investment has allowed companies to acquire land for agribusiness
concessions and other extractive and infrastructure projects.This has often resulted in
displacement of local communities, their loss of access to land and livelihood opportunities, and
local conflict
• TheVFV Law in 2012 has exacerbated land tenure insecurity for ethnic peoples, particularly for
those practicing shifting cultivation
• In 2016, the GoM created the Land Confiscation ReinvestigationCentral Committee as well as
corresponding Regional/State committees to work on conflict/dispute resolution; overwhelmed
by the sheer number of land dispute cases submitted

16. Myanmar
Opportunities and recommendations
• The passing of the NLUP in early 2016 represents a major opportunity to strengthen formal
recognition of CT land rights
• In January 2018, a National Land Use Council (NLUC) was created to oversee the establishment
of State/Regional Land Use Committees, to formulate the new Land Law, create consistency of
land records, maps and land registration systems…
• Several initiatives to document CT systems and to prepare case studies; growing recognition of
the importance of CT
• Drafting of the new Land Law and revision of the Forest Law and their implementation
guidelines needs to start as soon as possible; should provide villagers with options
• Specific measures to better secure the rights of women over land and address issues of re-
integration of IDPs and refugees
• Establishment of Interim Protective Measures
• Systematic audit of concessions and revision of concession contracts and their implementation

18. Viet Nam
Background to CT inVietnam
• Vietnam has 54 officially recognized ethnic groups; only 13% of national population, but large
number due to high overall population
• Large areas of forestland assigned to the management of State Forest Enterprises (SFEs); this
very often meant the end of customary tenure arrangements, leading to exclusion; new state
policies are overriding customary land management
• Large-scale resettlement and sedentarisation programmes
• Forest and forestland allocation (FLA) policies tried to decentralise state management and
devolve forest management to non-state entities such as individuals, households and
organizations
• Geographical isolation of many ethnic minority communities has preserved some customary
practices

19. Viet Nam
Regulatory framework
• Since 1975, CT systems have been recognized in law and policy, but have also been
superimposed by state control mechanisms and undervalued in implementation
• The 2005 Civil Code recognizes all-people (state), private and common ownership
• The latest Land Law of 2013 states that land belongs to the entire people with the State acting as
the owner’s representative and uniformly managing land; the State shall hand over land-use
rights to land users.
• The Land Law (2013) and various Decrees as well as the FLA practices have always prioritized
individual households over land allocation of agricultural and forest land to communities, but
specifically allows for land allocations to ethnic minority communities
• A new Forestry Law has been passed in November 2017.The law gives priority to forest
allocation to ethnic communities who have customary use of forests, defines communities as
"groups living in a same village and having the same customs and traditions", and recognizes for
the first time that communities can be forest owners.

20. Viet Nam
Challenges
• Forest and former shifting cultivation land has been converted to commercial crops (e.g. coffee,
rubber, cashew), limiting access to land by the poorer minority groups; competition over natural
resources continues to intensify
• A significant gap remains between existing policies aimed at ensuring rights to access land and
livelihoods of ethnic minorities and other vulnerable groups, and the actual practice
• General view that ethnic minorities and customary resource practices are in need of
“modernisation”
• FLA and the allocation of individual land-use rights has weakened communal tenure for forest
and agricultural lands
• SFEs continue to manage large areas of land, but if pressured to transfer land, they rather
allocate it to private companies instead of to the local population leading to land shortage
among ethnic minority households
• This has caused severe economic hardship for communities; in many provinces, severe land
conflicts between SFEs and local residents are ongoing

21. Viet Nam
Opportunities and recommendations
• The relevant laws and regulations inVietnam give much more room to the allocation of
collectively used land than is generally assumed
• Speed up redistribution of SFE to local people; also land areas under the direct jurisdiction of
Commune People’s Committees could be partly allocated to communities and households
• Continue to promote the review of policies and laws to strengthen the recognition of customary
tenure (recognition of communities as legal entities, clarification of rights and obligations,
identification of sacred and cemetery places of ethnic minorities as special-use land, etc.)
• Increase efforts for land dispute resolution between SFEs and ethnic minority communities
• Intensify efforts to document and map customary tenure systems and promote the allocation of
agricultural and forest land to local communities once they are recognized as legal entities.

22. Thank you for your attention!