LAND ALIENATION FROM INDIGENOUS

PEOPLES IN CAMBODIA

Statement by NGOs working closely with indigenous people

Date : October 2004,

In a national meeting on land issues on 18 October 2004 the Prime Minister, Hun Sen, said that the Government of Cambodia was committed to land security for poor people and that land held illegally by powerful people will be repossessed and redistributed. The NGO Forum of Cambodia welcome and applaud these statements by the Prime Minister and ask that special attention be directed toward the land alienation problem currently escalating in indigenous communities.  

During the last 10 months, numerous cases of illegal land sales and land grabbing have been identified in Ratanakiri and Mondolkiri. In a recent forum of indigenous people held in Chaen commune, Kompong Speu, indigenous representatives from 15 Provinces in Cambodia clearly confirmed that it was also happening in a number of other provinces. This has alarmed local organizations and NGO Forum of Cambodia have decided to issue the present statement in order to draw the attention of the government and its development partners to the land security crisis faced by indigenous peoples in Cambodia.

Illegal land sales and land grabbing contradict the intent of the 2001 Land Law. They also contradict commitments made during the last Donor Consultative Group meeting, and the policy priorities identified by the National Poverty Reduction Strategy.

The land insecurity and alienation that currently prevails undermines the rights of indigenous peoples to preserve their culture and traditions and to use their natural resources. Landlessness faced by indigenous peoples negatively impacts their enjoyment of basic social rights, such as health and education, and it will soon prove to be a major impediment for reaching the Millennium Development Goals (MDG), including the overarching goal of reducing poverty.

Land alienation affecting indigenous communities finds its expression in two main endemic problems in Cambodia: the absence of law enforcement and the lack of access to information.                [Top]

Enforcing the 2001 Land Law

Landlessness is inextricably linked to the root causes of poverty in Cambodia.[1] Poverty reduction efforts in relation to indigenous people will be rendered ineffective without enforcement of the Land Law.

By including a chapter on indigenous communal title in the 2001 Land Law, the National Assembly implicitly recognized that Cambodian development should not be seen as a uniform model for the entire population and special requirements were needed to respond to the situation of indigenous peoples in Cambodia.

These provisions in Chapter 3 of the Land Law followed the wishes expressed by indigenous leaders during consultations, in which traditional methods of land use and distribution were considered as unique, especially with regard to the community ownership of land. The Land Law therefore recognizes the rights of indigenous communities to continue to manage their lands in their traditional and communal manner. With this policy background, there is strong consensus among legal experts that the current sales or alienation of indigenous communal lands, particularly without informed and complete community consent are not legal.

Indeed, Article 23 of the Land Law, provides that prior to the legal status of indigenous communities being determined, those communities have the right to continue to manage their land in traditional ways. This provision was included to establish the right of communities to have their lands secure in the period before land titling and to prevent land being lost prior to communal titles being issued.

What is happening, however, is that the traditional management systems of indigenous communities are being destroyed by illegal and ill-considered land concessions to large companies. Recent examples that illustrate the nature of the problem include: 

• 70,000 hectare land concession over Suy indigenous peoples' land in Kompong Speu
• 1,400 hectare gem mining concession over indigenous peoples' land in Lumphat district, Ratanakiri province
• 2,000 hectare gem mining concession over indigenous peoples land in Borkeo district, Ratanakiri province
• 200,000-hectare land concession proposed for Mondolkiri (10,000 ha has been approved so far).

The traditional management systems of indigenous communities are also being destroyed by individual sales of community land, many of which being promoted by powerful people who illegally dispossess indigenous communities of their communal lands.

• In many cases, land sales are being approved by individual community members but in an environment of insufficient information, disinformation, and sometimes threats and intimidation.
• Indigenous people selling their land because of misinformation, for example being told that their lands belong to the State and that the State will take them back in the future.
• Local authorities arbitrarily sell land without informing the indigenous community who are living on the land.
• In other cases, land is occupied or taken by indigenous or non-indigenous individuals, usually those with power and connections, without any approval or acceptance of indigenous communities.

All these practices are in contravention with the Land Law and need to be tackled seriously by the relevant authorities. The intent of the 2001 Land Law  was to ensure that communities could hold their lands communally while communal titling is in progress. The Land Law is not being respected and indigenous communities are losing their lands, livelihoods and traditional way of life as a result.

A Sub-decree on indigenous collective title is currently being developed by the Inter-ministerial Taskforce for the Study of the Registration of Indigenous Land Rights.  To inform the development of the Sub-decree, 3 pilot projects have been initiated (2 villages in Ratanakiri and 1 village in Mondolkiri). In addition, the recent forum of indigenous people held in Kompong Speu in September marked the beginning of a consultation process on the Sub-decree.  We support these positive initiatives by the Government but note that unless urgent action is taken in relation to land alienation, many indigenous communities will have lost significant parts of their traditional lands before they have the opportunity to obtain communal title.                  [Top]

Access to information

The lack of enforcement of the 2001 Land Law is also a result of a lack of access to information about land rights. The lack of information or misinformation may be being exploited to speed up illegal land sales before the adoption of the sub-decree on communal title. For example, we hear reports that some officials and land speculators are telling indigenous communities the following: 

• Fallow agricultural lands belong to the State, and therefore communities should sell their lands as soon as possible before the officials decide to take it from them.

• Communities should sell their lands to “development” and for cash cropping because it is the national policy of  the Government for poverty reduction.

• Villagers need privately owned land, so they have something to sell when they need money for medical expenses. This argument has been used to weaken communal ownership and undermine the integral linkage between land and the health status of indigenous peoples.

• One community is the legitimate landholder of lands occupied by other communities, and therefore can sell land. This is usually done by wrongly telling people that old traditional boundaries are the boundaries respected by law rather than the existing boundaries. This lack of understanding of the Land Law regarding existing selling rights has been used to dispossess indigenous people of their lands. This also contributes to inter-village conflicts and distorts community cohesion.

• “Communal title is the same as Pol Pot times”. This is a clear misunderstanding or misinterpretation (mainly due to the Khmer translation) of communal title, which is NOT referring to communal use (where all harvests are pooled as during the Khmer Rouge period). On the contrary, the concept of communal title aims at issuing one title to a community and allows that community to allocate individual or family rights to use that land.

Access to information is an essential human right. With accurate, clear, timely and accessible information, indigenous communities are better equipped to exercise their rights and hold the Government and its development partners accountable. People trusted by the communities concerned must deliver this information in indigenous languages. Experience in Ratanakiri shows that where communities have greater understanding of their legal rights this has decreased the rate of land alienation.  It is also imperative that information undermining communal ownership and rights be monitored and counteracted.             [Top]

Conclusion and recommendations

There is already a severe land alienation problem affecting indigenous communities in Cambodia. Experiences in other countries have shown that such practices lead to poverty and social breakdown. This is currently being created at an alarmingly high rate.

Cambodia has the opportunity to avoid, or at least to mitigate, the problems faced by indigenous peoples in other countries who have been dispossessed of their traditional lands. Urgent action is needed to redress the situation and ensure the protection of the cultural heritage of indigenous peoples in Cambodia. This will require the following:

• The Government should declare a moratorium on land sales and land concessions affecting indigenous peoples until the adoption of the sub-decrees on both indigenous communal title and economic concessions.

• The instigators of illegal land sales and land grabbing should be prosecuted in the courts but court actions should not be used to prosecute indigenous people who did not understand that their actions were illegal or who have been manipulated by land speculators

• The Government should ensure that land transaction procedures are protected from potential abuse - such as the backdating of land titles and possession documents. 

• Lands that have been recently alienated from indigenous communities need to be reviewed in an open and transparent manner so that illegal land transactions can be reversed and that land taken illegally can be returned to indigenous communities.

• The Government with the support of its development partners and in collaboration with civil society should launch an information campaign on the Land Law at the provincial level in areas in which indigenous communities live.

• It is urgent that some official policies and legal interpretations supporting the communal rights of indigenous people and declaring the illegality of land alienation be released by the government and circulated widely in areas with indigenous peoples.

• The Government should consider the adoption of a Prakas on access to public information in relation to the Land Law (Art. 240) and relevant sub-decrees with the view to clearly identify and detail the mechanisms and type of information to be made available, including complaint mechanisms when relevant authorities have failed to deliver the requested information.

• Donors should continue to support training (“extension”) on land rights of indigenous peoples in local languages. This should be done through civil society in partnerships with government.

• The Government, donors and civil society should continue to support the pilot projects on indigenous communal ownership and the drafting of a Sub-Decree on indigenous communal title.  Faster progress on the drafting and adoption of a Sub-decree is required and it is essential that the process continue to involve meaningful consultation with indigenous peoples. 

• Following the adoption of a Sub-Decree on indigenous communal title, the Government and donors should support communal titling in indigenous areas in a way that supports long-term land security for indigenous areas. 

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