CLEC Presentation at SEA Customary Land Rights Conference

8/14/2019 CLEC Presentation at SEA Customary Land Rights Conference

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Pressures on Customary LandPressures on Customary Land

Rights in SEA PhnomRights in SEA Phnom Phnom Penh,Phnom Penh,CambodiaCambodia

18-22 October 200918-22 October 2009

NGO Efforts to influenceNGO Efforts to influence

the legislation process inthe legislation process in

favour of IPs: Lessonsfavour of IPs: Lessons

learned and challenges forlearned and challenges forthe futurethe future

m G c s

C L E C

Presented by Mr. Yeng Virak,

CLEC Executive Director


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Outline of the presentationOutline of the presentation

I.I. Overview of legal framework onOverview of legal framework on

customary land rightscustomary land rights

II.II. NGO assessment of ongoing policiesNGO assessment of ongoing policiesand programs of government inand programs of government in

relation to customary land rightsrelation to customary land rights

III. NGO (incl. CLEC) interventionsIII. NGO (incl. CLEC) interventions

IV. Impact, challenges and lessonsIV. Impact, challenges and lessons

learnedlearned


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I. Legal Framework on IPsI. Legal Framework on IPs

RightsRights Policy and laws- relatively progressive.Policy and laws- relatively progressive.

Cambodia ConstitutionCambodia Constitution Land Law 2001:Land Law 2001:

Collective ownership of indigenous communitiesCollective ownership of indigenous communities

Forestry Law;Forestry Law; Sub-Decree on Addressing the Socio-Sub-Decree on Addressing the Socio-

Economic Impacts of Dev. Project (ASEIDP);Economic Impacts of Dev. Project (ASEIDP); National Policy on the Dev. of IPsNational Policy on the Dev. of IPs; and; and Sub-Decree on Procedures of Registration ofSub-Decree on Procedures of Registration of

Land of Indigenous Communities (PRLIC)Land of Indigenous Communities (PRLIC)April, 2009.April, 2009.


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I. The legal framework on IP landI. The legal framework on IP land

rightsrightsThe Cambodian ConstitutionThe Cambodian Constitution

The IPs of Cambodia are protected the CambodiaThe IPs of Cambodia are protected the CambodiaConstitution (Article 31, the internationalConstitution (Article 31, the international

covenants and conventions relating to humancovenants and conventions relating to human

rights represent binding domestic law inrights represent binding domestic law in

Cambodia.Cambodia.

Land law (2001)Land law (2001) provides forprovides for collective ownershipcollective ownership bybythe indigenous peoples as one of the five major landthe indigenous peoples as one of the five major landclassifications (Art 23).classifications (Art 23).

The Law recognizes the indigenous customary rules for the management ofThe Law recognizes the indigenous customary rules for the management ofthe indigenous community:the indigenous community: the groups actually existing at presentthe groups actually existing at presentshall continue to manage their community and immoveableshall continue to manage their community and immoveable

property according to their traditional customsproperty according to their traditional customs..


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National Policy on Development ofNational Policy on Development of

Indigenous PeoplesIndigenous Peoples

The policy provides more comprehensiveThe policy provides more comprehensiveprotections related to education,protections related to education,

health, land, and cultural well-beinghealth, land, and cultural well-being

of the indigenous people.of the indigenous people.


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The Sub-Decree on Procedures ofThe Sub-Decree on Procedures of

Registration of Land of IndigenousRegistration of Land of Indigenous

CommunitiesCommunities

Art. 4: Land which is to be registered asArt. 4: Land which is to be registered ascollective ownership of IP communitycollective ownership of IP community

includes:includes:

1). Private State land:1). Private State land: Residential land or land which is reservedResidential land or land which is reserved

for building residences;for building residences;

Traditional agricultural land, actualTraditional agricultural land, actual

cultivated land and farmland recognized bycultivated land and farmland recognized byadministrative authorities and neighbors;administrative authorities and neighbors;


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The Sub-Decree on Procedures ofThe Sub-Decree on Procedures of

Registration of Land of IndigenousRegistration of Land of Indigenous

CommunitiesCommunities(continued)(continued)2). Public state land2). Public state land such as:such as:

Reserved landReserved land necessary for the shifting ofnecessary for the shifting ofcultivation recognized by the administrativecultivation recognized by the administrativeauthorities and neighbors;authorities and neighbors;

Spiritual forest landSpiritual forest land can have one or morecan have one or moreplaces for each community, with the total landplaces for each community, with the total landsize not more than 7 hectares; andsize not more than 7 hectares; and

Forest land of cemeteryForest land of cemetery can have one orcan have one or

many places for each community, with themany places for each community, with thetotal land size not more than 7 hectares.total land size not more than 7 hectares.


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II.II. NGO efforts and assessment onNGO efforts and assessment on

Govt policies and programs onGovt policies and programs on

customary land rights and IPscustomary land rights and IPs

The Land Law- relatively progressiveThe Land Law- relatively progressive

As a result of more 2 years of intensive legislativeAs a result of more 2 years of intensive legislative

campaigncampaign

Nationally: incl. Council of Ministers,..Nationally: incl. Council of Ministers,..Internationally: with ADB, in Japan, CG meetingsInternationally: with ADB, in Japan, CG meetings

A Local and International NGO Working Group on LandA Local and International NGO Working Group on Land

Law; chronology of events, parallel drafts, etc.Law; chronology of events, parallel drafts, etc.


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Forestry LawForestry Law Protects traditional access rights to forestedProtects traditional access rights to forested

land and forest resources. It provides Theland and forest resources. It provides The

State ensures customary user rights ofState ensures customary user rights of

forest products and by-products for localforest products and by-products for local

communities and as further provided in thecommunities and as further provided in the

provisions of this Law or other relevant lawsprovisions of this Law or other relevant laws

(Art. 2).(Art. 2).

The Forestry Law classifies spirit forest asThe Forestry Law classifies spirit forest as

protected forestprotected forest


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The Sub-decree on ASEIDP (2008)The Sub-decree on ASEIDP (2008)

NGO and Community Network representativesNGO and Community Network representatives

advocate on this, but not successful.advocate on this, but not successful.

Community consultations,Community consultations, Lobby with the drafter (MoEF), the ADB, the WB,Lobby with the drafter (MoEF), the ADB, the WB,

Donor Meetings, etc.Donor Meetings, etc.

It undermines existing laws that protectIt undermines existing laws that protect

indigenous and minorities rights; fails to meetindigenous and minorities rights; fails to meetinternational HR standards.international HR standards.

It is an ongoing challenge and continuedIt is an ongoing challenge and continued

advocacy.advocacy.


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.. e or s an assessmen onGovt policies and programs onGovt policies and programs on


(Continued)(Continued)Sub-Decree on PRLIC:Sub-Decree on PRLIC: It has advocacy efforts of local and indigenousIt has advocacy efforts of local and indigenous

communities with local and international NGOs andcommunities with local and international NGOs andIOs on the law,IOs on the law, but not that successful.but not that successful.

The Land Law does not limit the number of hectaresThe Land Law does not limit the number of hectaresof spirit forest and burial land indigenous peoplesof spirit forest and burial land indigenous peoplescommunities can own. BUTcommunities can own. BUT

The Article 4 of the Sub-Decree on Procedures forThe Article 4 of the Sub-Decree on Procedures forRegistration of Land of Indigenous Community sets aRegistration of Land of Indigenous Community sets alimit of only 7 ha.limit of only 7 ha.

As this may problematic in implementation compare to theAs this may problematic in implementation compare to theindigenous communities current use of spirit forests and burialindigenous communities current use of spirit forests and burialland? It remains an issue on IPs rights.land? It remains an issue on IPs rights.


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III.III. CLECs interventionsCLECs interventions

Two intervention strategies:Two intervention strategies:

1. Legal Empowerment of1. Legal Empowerment of

communities; andcommunities; and

2. Influence policy and law2. Influence policy and law

development and implementation.development and implementation.


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III.III. CLECs interventionsCLECs interventions Legal awareness;Legal awareness;

Radio and TV spots, talk shows, publication,Radio and TV spots, talk shows, publication,

Press conferences; Public Forum,Press conferences; Public Forum,NewspaperNewspaper

Legal trainings;Legal trainings; Peace Tables- community hearing;Peace Tables- community hearing; Legal aid:Legal aid:

Legal consultationLegal consultation

Legal representationLegal representation Legal defenseLegal defense

Policy and Legislative advocacy andPolicy and Legislative advocacy andlitigationlitigation


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4. Positive Impacts4. Positive Impacts The communities and land right advocatesThe communities and land right advocates

were better understand, they stand up againstwere better understand, they stand up againstthe violators.the violators.

Community representatives and grassrootsCommunity representatives and grassrootsadvocates of target communities have beenadvocates of target communities have beenmore confident and effective in exercising andmore confident and effective in exercising and

defending their rights, in influencing policy,defending their rights, in influencing policy,laws and government decisions.laws and government decisions.


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Challenges and lessonsChallenges and lessons

learned.learned. A big divide between policies, laws andA big divide between policies, laws and

reality;reality;

Abuse of powers,Abuse of powers,

The weak, the poor, vulnerable groups likeThe weak, the poor, vulnerable groups like

IPs are often at the losing end of the growthIPs are often at the losing end of the growth

the Government is promoting.the Government is promoting. The legal system is being used to make livesThe legal system is being used to make lives

of those land right advocates, incl. IP onesof those land right advocates, incl. IP ones

more miserable. Often they face criminalmore miserable. Often they face criminal

charges, arrests, imprisonment.charges, arrests, imprisonment. Things seem going back to square-oneThings seem going back to square-one


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Lessons LearnedLessons Learned

As active citizens, continue toAs active citizens, continue to

engage and hold duty bearersengage and hold duty bearers

accountable for their legallyaccountable for their legally

mandated duties.mandated duties. NGOs play supporting roles toNGOs play supporting roles to

grassroots communities, IPsgrassroots communities, IPs

collective actions for positivecollective actions for positivechanges.changes.


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sUmGrKuNsUmGrKuN!!THANK YOU!THANK YOU!

Documents

CLEC Presentation at SEA Customary Land Rights Conference