Indigenous Peoples and land: Comparing communal …€˜Indigenous Peoples’ and land: Comparing communal land titling ... In 2001 a new Land Law was ... lands means recognising state

‘Indigenous Peoples’ and land: Comparing communalland titling and its implications in Cambodia and Laos

Ian G. BairdDepartment of Geography, University of Wisconsin-Madison, 550 N. Park Street, Madison, WI 53706, USA.

Email: [email protected]

Abstract: In 2001 a new Land Law was adopted in Cambodia. It was significant because – for thefirst time – it recognised a new legal category of people, ‘Indigenous Peoples’ or chuncheat daoempheak tech in Khmer, and it also introduced the legal concept of communal land rights to Cambodia.Indigenous Peoples are not mentioned in the 1993 constitution of Cambodia or any legislationpre-dating the 2001 Land Law. However, Cambodia’s 2002 Forestry Law also followed the trend byrecognising ‘Indigenous Peoples’. These laws have been both symbolically and practically important,as they have provided government-mandated legitimacy to Indigenous identities and associated landand forest rights, including communal land rights, and have been ontologically significant in dividingIndigenous and non-Indigenous Peoples on legal grounds. Over a decade after the 2001 Land Lawwas promulgated, this article considers some aspects of its effects. In particular, when compared withthe potential for developing communal land rights in Laos, one has to wonder how advantageous itis to adopt Indigenous identities and the types of communal land rights and community forestryrights presently possible in Cambodia.

Keywords: Cambodia, communal land titling, indigeneity, Indigenous Peoples, land tenure, Laos

Introduction

In recent years there have been significantchanges in how the category of ‘IndigenousPeoples’ has become conceptualised in Cambo-dia. Indeed, in 1993, neither IndigenousPeoples nor even upland ethnic minorities werementioned in Cambodia’s new constitution.Neither does the concept appear in previousCambodian constitutions or legislation. The2001 Land Law of Cambodia has been particu-larly significant because it was the first law toexplicitly recognise the existence of ‘IndigenousPeoples’ (chuncheat daoem pheak tech inKhmer) in Cambodia, and it was the first pieceof legislation to provide those defined as ‘Indig-enous’ with extraordinary land rights apart fromwhat are available to other Cambodians. It gavethem the right to establish ‘communal landtenure’, or the shared land rights of a commu-nity to a particular piece of land (RGC, 2001;Baird, 2011). Indeed, it is significant that Cam-bodia is the first country in mainland Southeast

Asia to recognise particular land rights for acertain group of people who are identified as‘Indigenous’, although it does follow a recenttrend in Asia, with similar changes alreadyhaving occurred in Japan, Philippines andTaiwan (Erni, 2008; Baird, 2011). Still, in bothCambodia and elsewhere in Asia, there remainsconsiderable resistance to providing particularrights to people defined as ‘Indigenous’ (Erni,2008; Baird, 2011; Ehrentraut, 2013). Part of thereason for this is that the ethnic Khmer of Cam-bodia often consider themselves to be a‘minoritized majority’ (Goshal et al., 1995: 28);that is, a dominant group that perceives itself tobe threatened with extinction. As Goshal et al.(1995: 28) put it, ‘many Cambodians think, asthey have thought for centuries, of Cambodia as“srok Khmer”, the land of the Khmer: a people,culture and distinct way of life that once was thejewel of South East Asia, but now, in the mindsof many Khmer, is threatened with extinction’.

The population of Indigenous Peoples, aspresently defined in Cambodia, seems likely to

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Asia Pacific Viewpoint, Vol. 54, No. 3, December 2013ISSN 1360-7456, pp269–281

© 2013 Victoria University of Wellington and Wiley Publishing Asia Pty Ltd doi: 10.1111/apv.12034

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range somewhere between 1 and 1.4% of thenation’s total population (National Institute ofStatistics, 2008; Anderson, 2011), althoughIronside (2009) has pointed out that these sta-tistics are far from certain. In any case, it isevident that Indigenous Peoples make up asmall portion of the overall population. InCambodia, they include peoples belonging tovarious ethnic groups, including the Jarai,Tampuan, Brao, Kavet, Kreung, Lun, Bunong,Stieng, Kuy and others (Baird, 2011; Ironside,2011; Swift, 2013). Recently, 23 minority‘mother tongues’ have been identified as exist-ing in the country (Ironside, 2011; CIA, 2012).

Over the last number of years, the idea of‘communal land rights’ has received increasedinterest and recognition by many governmentsand international organisations, with variousforms of communal land agreements havingbeen adopted in different parts of Asia(Colchester, 2004; Lynch, 2006; Anderson,2011). In Cambodia, like the Philippines, com-munal land titling has been integrally linked tothe adoption of the concept of IndigenousPeoples (Anderson, 2011; Baird, 2011), but thishas not been the case everywhere in Asia,including Laos, where the Lao People’s Demo-cratic Republic (PDR) government continues toadopt what has become known as the ‘saltwater theory’ (Erni, 2008). That is, Lao PDR doesrecognise the importance of the rights of Indig-enous Peoples in parts of the world widely colo-nised by European colonial powers, such as theAmericas, Australia and New Zealand, but itconsiders all the citizens of its country to haveequal rights, regardless of ethnicity (Erni, 2008).This is significant for a country such as Laos,which has much more ethnic diversity than inCambodia, including 49 recognised ethnicgroups and well over 100 sub-groups. Moreo-ver, approximately half of the population ofLaos are not ethnic Lao (Lao Front for NationalConstruction, 2005), which makes ethnic iden-tities much more important for most people inLaos as compared with Cambodia.

So what have the implications of the creationof Indigenous Peoples been in Cambodia, bothfor Indigenous and non-Indigenous Peoples,and particularly in relation to land and forestaccess rights? Also, to what extent has becom-ing legally defined ‘indigenous’ been beneficialwith regard to gaining improved and more

secure access to resources crucial to their live-lihoods? The objective of this article is toaddress the above questions, although I mainlyfocus on one aspect of Indigenous identities:communal land titling, the main extraordinaryright allowed to Indigenous Peoples in the 2001Cambodia Land Law.

In relation to the Land and Forest Laws ofCambodia, I mainly want to make the pointsthat: (i) communal land rights are only beingprovided to a small portion of the population,those defined as Indigenous Peoples; (ii) thataccepting communal titles over agriculturallands means recognising state ownership of‘forest land’1; and (iii) that community forestryonly provides local peoples weak and relativelyshort-term rights over forest resources.

The emergence of ‘Indigenous Peoples’in Cambodia

In that Baird (2011) has already provided adetailed account of the genealogy of how theconcept of ‘Indigenous Peoples’ has recentlybeen constructed in Cambodia, and insertedinto the 2001 Land Law, I will not repeat all thedetails here. It is, however, worth providing anabbreviated account, in order to frame thisarticle.

The concept of ‘ethnic minorities’ is not newto Cambodia, and ethnic minorities have longbeen referred as chuncheat pheak tech (ethnicminorities) in Khmer. In addition, those whospeak Mon Khmer languages other than Khmerhave often been referred pejoratively as Phnong(see Baird, 2008). In the late 1950s duringPrince Norodom Sihanouk’s Sangkum ReastrNiyum (People’s Socialist Community) period,however, the terms Khmer Kandal (middleKhmer, the majority), Khmer Islam (for theethnic Cham) and Khmer Loeu (upland Khmer)were invented by the state to classify Cambodi-ans as part of attempts to integrate minoritypeoples into the Khmer nation (Baird, 2008,2010b). Many minorities were, in fact, happy tobe referred as Khmer Loeu, and this remains thecase today.

It was not, however, until 1997 when theterm ‘Indigenous Peoples’ was more fullyconceptualised and articulated by Westernnon-government organisation (NGO) activists

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working in northeastern Cambodia, particularlyRatanakiri Province. It was during an NGO-organised workshop with ethnic minorities heldin Ban Lung, the capital of Ratanakiri Province,when ‘chuncheat daoem pheak tech’ was pro-posed as the Khmer language term for Indig-enous People. The word ‘daoem’, which means‘original’, changed ethnic minority to ‘originalethnic minority’, which has come to mean‘Indigenous Peoples’ in the country. Thelowland Khmer were referred to as ‘chuncheatdaoem pheak charoen’, or the ‘original ethnicmajority’ at the same workshop. In that ethnicKhmer people were still classified as an ‘originalpeople’ of Cambodia, albeit the majority, theconcept of ‘original ethnic minority’ wasdeemed acceptable to government officials atthe time (Baird, 2011), and while ‘originalethnic majority’ is rarely used in Cambodiatoday, the term for ‘original ethnic minority’ hasgenerally been adopted in the country.

It was not, however, until the 2001 Land Lawwas adopted that the term ‘Indigenous Peoples’really gained traction, as the law was the first toprovide those classified as Indigenous with par-ticular communal land rights different fromother Cambodians (Baird, 2011; RGC, 2001). Infact, the Land Law defines ‘indigenous commu-nity’ (sahakom chuncheat daoem pheak tech inKhmer) as:

groups of people who reside in the territory ofthe Kingdom of Cambodia whose membersmanifest ethnic, social, cultural and economicunity and who practice a traditional lifestyle,and who cultivate the lands in their possessionaccording to customary rules of collective use(Article 23) (quoted in Ehrentraut, 2013: 99).

Thus, from the very beginning, the concept ofIndigenous Peoples has become entangled withideas about customary and collective land use.It has been defined in a rigid way, something Iwill refer to later in the article.

The Land Law was followed, in 2002, withthe Forestry Law, which was the second piece ofCambodian legislation to provide IndigenousPeoples with special consideration, throughproviding particular rights to forest resourcesimportant for their livelihoods (Baird, 2011;RGC, 2002). Activist NGOs played crucialroles in ensuring that the concept of Indigenous

Peoples was included in both laws (Baird,2011).

As the Land Law and Forestry Law came intoeffect, various international NGOs operating inCambodia promoted the concept of IndigenousPeoples through illustrating the practical valueof adopting Indigenous identities. In addition,NGOs started to expose Indigenous leaders tonew ideas about the global Indigenous move-ment by funding and otherwise facilitating theirparticipation in various international confer-ences, workshops and meetings, including theannually occurring United Nations PermanentForum on Indigenous Issues in New York, andvarious events organised by international andregional organisations such as the Asian Indig-enous People’s Pact and the International WorkGroup on Indigenous Affairs. Inside Cambodia,various organisations linked to Indigenousethnic groups also began to emerge in the2000s, which further increased the importanceof Indigenous identities in the country. The LandLaw was not the only cause of the developmentof these groups, but it did help create the dis-cursive space for the development of ideasabout ‘Indigeneity’. These groups included thenationally active Indigenous CommunitiesSupport Organization, the Cambodian Indig-enous Youth Association, the Ratanakiri-basedHighlanders Association (Samakom Khmer Loeuin Khmer) and the Indigenous Youth Develop-ment Program, the Preah Vihear and KompongThom-based Organization to Promote KuyCulture, and the Indigenous Rights ActiveMembers Network (Erni, 2008; Baird, 2011;Swift, 2013). It is not that all these organisationswere established particularly to promote theidea of being Indigenous, but they have alladopted the concept of Indigenous Peoples,indicating that the term has gained some trac-tion with at least some elements within theIndigenous population of Cambodia.

In short, new legislation in Cambodia, aswell as various international and local NGOefforts within and outside of the country involv-ing key Indigenous leaders in Cambodia, havebeen crucial for establishing and elevatingthe concept of Indigenous Peoples, and indeed,the Indigenous movement in Cambodia hasexpanded and has become more widelyaccepted and normalised in Cambodia over thelast decade or so.

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The importance of the 2001 Land Law

The importance of the 2001 Land Law in Cam-bodia for promoting the concept of IndigenousPeoples should not be underestimated, espe-cially in the early years after the law was firstadopted. The establishment of communal landrights was the most concrete change that hasmade the concept of Indigenous Peoples par-ticularly relevant and meaningful for IndigenousPeoples in Cambodia. It is thus worth assessing– over a decade after the Land Law came intoeffect – how the Land Law and communal landrights in Cambodia have played out. Moreover,how might these concepts have been developeddifferently, or reimagined?

Although the 2001 Land Law established theright of Indigenous Peoples to receive commu-nal land rights, initially the law did not have anoticeable material impact on the ground. Evennow, the Land Law has played out unevenly inthe country, with some areas being much lessaffected by it than others (Peter Swift, pers.comm., 19 August 2012). Moreover, while thelaw was supposed to provide for interim pro-tection of Indigenous lands, including protec-tions against eviction prior to Indigenous landsbeing registered (Bugalski, 2012), the reality isthat little protection has been given, and Indig-enous land losses have continued at a high rate(NGO Forum on Cambodia, 2006; Danida,2

2010; Ironside and Nuy, 2010; Ironside, 2011;Neef et al., 2013; Baird, in press). A major con-straint of the 2001 Land Law is that it was notconsidered sufficient to grant communal landtitles. Some in the Cambodian Governmentdecided that communal land titles could not begranted until after the Sub-Decree on Proce-dure of Registration of Land of Indigenous Com-munities was adopted in 2009 (RGC, 2009;MLM, 2009; Galvin, 2012). This sub-decreewas built on the 2001 Land Law, and estab-lished the legal foundation for allowing theactual granting of communal land titles toIndigenous communities. Crucially, it sets outguidelines for registering Indigenous communi-ties, which according to the sub-decree is anecessary precondition for securing communalland titles. First, the Ministry of Rural Develop-ment approves the designation of a communityor village as ‘Indigenous’. Then, the Ministry ofInterior registers the village as a legal entity,

which involves incorporating the community asa legal person and developing constitutionalstatutes and bylaws endorsed by the Ministry(Anderson, 2011).

Tania Li’s ideas about the ‘tribal slot’ in Indo-nesia are relevant to consider in this context, asshe argues, drawing on the work of Stuart Hall(1996), that a group’s self-identification asIndigenous is not obvious or inevitable. Nor is itsimply invented, adopted or imposed by outsid-ers. Instead, it is a particular type of positioningthat variously draws on history, landscapes andrepertoires of meaning – particular fields of con-tingent power – and emerges through differentvarieties of struggles and engagement.

According to an Indigenous NGO worker inRatanakiri Province interviewed by reportersfrom the Phnom Penh Post, ‘to be recognised bythe Ministry of Rural Development, a commu-nity needs to prove it is a collective unit sharingcommon language, customary law and culture,including art, dance and ceremonial events’(Walker and Tep, 2011). Thus, the Cambodianconception of ‘Indigenous’ is tied to static ideasabout ‘traditional’ culture and especially agri-cultural practices, including swidden agricul-ture, something that many Indigenous activistshave either challenged or outright rejected inother parts of the world (see Baird, 2011;Ehrentraut, 2013). This raises various questionsabout the extent to which being defined asIndigenous is actually reifying particular prac-tices and identities, in ways that could poten-tially box people into certain positions thatcould actually limit their opportunities tochange in ways that might advantage them-selves (see Walker, 2001 for a good discussionof this in relation to the Karen in Thailand). Inany case, such ideas have been promoted bysome NGOs in Cambodia (Baird, 2011; PeterSwift, pers. comm., 19 August 2012), and it isalso true that at least some Indigenous Peoplesin Cambodia have been happy to go along withthis vision of Indigeneity, despite the potentialpitfalls it might lead them to. The state throughgiving certain ethnic groups particular rightsand not others, is ultimately changing the ethniclandscape of the country (see Keyes, 2002).After the first two steps of Indigenous and com-munity registration, the third involves register-ing the already measured land as communal(Anderson, 2011).

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As of January 2012, 153 Indigenous commu-nities were reportedly undergoing the processof land titling under an International LabourOrganization programme in collaboration withother partners, such as NGOs. Thirty of thesewere registered as legal entities at the time,which means that they were already in the laststage of the procedure to receive communalland titles (Galvin, 2012). There are now,however, at least 40 communities registered aslegal entities, and it was expected that six ofthose would have communal land titles byMay 2013, due to support provided by theCanadian International Development Agency(Jeremy Ironside, pers. comm., 30 August 2012).Although the granting of communal land titleswas initially very slow and extremely frustratingfor many, including Indigenous communityleaders and activists (Baird, 2011; Ironside,2011; Walker and Tep, 2011), it now appears tobe moving ahead quicker (see for e.g. Ironside,2011; Walker and Tep, 2011; Evans et al., 2012;Galvin, 2012). Still, very few people have ques-tioned whether the adoption of this land man-agement framework, based on reified visionsof Indigeneity, is really advantageous for thepeople who are being asked to adopt them (butsee Milne, 2013). For example, it is possiblethat sacrificing flexibility for secure land titlecould have a negative impact on sustainability,although it remains too early to know this.

In any case, the first step of the above-mentioned process, the recognition of Indig-enous communities by the Ministry of RuralDevelopment, is particularly significant, as itestablishes, for the first time in Cambodia, alegal difference between the general populationand ‘Indigenous’ inhabitants (Baird, 2011). Italso involves setting up an Indigenous commit-tee to be responsible for managing communalland holdings in the future (Ironside, 2011).

Some of the first communities to receive offi-cial communal land titles based on the 2001Land Law are located in Mondulkiri, northeast-ern Cambodia, and are populated with mainlyethnic Bunong people, the dominate Indig-enous ethnic group in the province. With thesupport of the Wildlife Conservation Society(WCS), a US-based wildlife conservationorganisation, communal land titling has beenmoving ahead in a number of villages occupiedby largely ethnic Bunong people located

within the Forest Administration-designated292 690-ha Seima National Protected Forest(Evans et al., 2012). It would appear that at leastsome of these people are happy with the resultsso far (Ironside, 2011), but it is unclear whetherthey will feel the same in the long term. Cru-cially, so far the downsides of this positioninghave not been discussed much, so few peopleare cognisant of the potential downsides ofadopting the ‘Indigenous slot’. So, how hascommunal land titling worked in Mondulkiri?

Indigenous land titling in Seima NationalProtected Forest

WCS has been supporting the management ofSeima National Protected Forest since it wasfirst designated in 2002 (Evans et al., 2012).3 In2004, Andoung Kraloeng Village in O Rang Dis-trict, Mondulkiri Province (see Fig. 1), which iswithin Seima, and had been supported by WCSsince 2003, was selected as one of the nationalpilot sites for communal land titling (Evanset al., 2012), along with two other locations inRatanakiri Province, La In Village and LaeunKrenVillage (LMAP/GTZ, 2004; Ironside, 2011).Since then, Andoung Kraloeng has been regis-tered as an Indigenous entity and has had over1400 ha of communal agricultural lands demar-cated. It was expected to become the firstvillage in Cambodia to have its communal agri-cultural lands formally recognised by the Min-istry of Land Management, Urban Planning andConstruction (Evans et al., 2012). However, thetwo pilot villages in Ratanakiri actually endedup receiving their communal land titles first, inDecember 2011, as an additional sub-decreewas required for villages within Seima so as tolegally convert protected forest (state publicland) into state private land so that it could belegally titled. This was not relevant for the vil-lages in Ratanakiri because they are not locatedwithin protected forests (Jeremy Ironside, pers.comm., 30 August 2012).

Essentially, the communal land titling processin Cambodia has allowed for the designation ofswidden or other agriculture land as communal.Indeed, Cambodia is also the first country inmainland Southeast Asia to allow for this type ofdesignation. This constitutes a level of collectiveland tenure security that villagers previouslydid not have, so not surprisingly, many pro-



Indigenous Peoples activists are positive aboutthis. Although the people being defined asIndigenous do not conduct swidden cultivationcommunally, they only maintain private owner-ship of plots of land up until the time that theyare fallowed, thus resulting in particular fallowsbeing cut down for swidden agriculture by dif-ferent families than previously conducted agri-culture on the same pieces of land. This is whymany Indigenous Peoples in Ratanakiri Prov-ince have argued that to have communal landat the village level is important for maintain-ing their swidden agricultural systems (Baird,2008).

In addition, significant areas of forested landshave been registered as either agricultural orreserve land in both Mondulkiri and RatanakiriProvinces, so villages have gained more thansome feared might end up being the case(Jeremy Ironside, pers. comm., 30 August 2012).Apart from registering existing agriculturallands, Indigenous communities have beenallowed to add more land to their titles to allowfor some future agricultural expansion andpopulation growth, another crucial argumentfor communal land titling that some IndigenousPeoples in Ratanakiri have made in the past(Baird, 2008), but the amount of land that has

Figure 1. Map showing the locations of places mentioned in the article

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been added has been limited, although notinsignificant. For example, in the case ofAndoung Kraloeng, some over 40-year-oldfallow areas have been registered as communalagricultural areas. Ironside (2011) has alsoreported that Indigenous entity registration has,at least initially, provided some communitieswith additional leverage when bargainingwith outside companies who want to accessresources in their community areas.

Communal land titling in Seima appears to bemoving ahead fairly quickly. As Evans et al.(2012: 78) have put it, ‘of the other 11 villages[apart from Andoung Kraloeng village] engagedso far, four have made strong progress (havingcompleted their registration with the Ministry ofInterior as legal entities eligible to hold land)and seven have begun the process but remain atan earlier stage. Seima area has arguablyachieved greater progress in Indigenous landtitling than any other part of the country’.

Probably the most important limitation of thecommunal land titling process for IndigenousPeoples in Cambodia relates to forest landsoutside of areas designated for agriculture orreserve. According to the RGC (2009) Sub-Decree on Procedures for Registering of Land ofIndigenous Communities, only the followingtypes and quantities of land can be registered ascommunal:1 Residential land or land that is reserved for

building residences.2 Traditional agricultural land, actual cultivated

land, farm land and reserved land necessaryfor shifting cultivation recognised by admin-istration authorities and neighbours.

3 Spiritual forest land (one or more places foreach community) with the total land size notmore than 7 ha.

4 Forest land of cemetery (one or many placesfor each community) with the total land sizenot more than 7 ha.Crucially, while potentially working well for

protecting agricultural lands, including shifting/swidden cultivation areas, only very small areasof ‘forest’ not used for agriculture can beincluded in communal land titles (a maximumtotal of not more than 14 ha per village), even ifthe reality so far has been that some forests havebeen defined as agricultural or reserve lands.

In Seima, for example, the Bunong people donot only conduct swidden and lowland paddy

agriculture, but also rely heavily on forest-basedlivelihood activities, including the tapping ofwood resin trees (Dipterocarpus alatus or spp.)found in the forest. These trees, as well as otherresources crucial to local livelihoods, are foundover hundreds or thousands of hectares of forestland (see Evans et al., 2003). These large areasof de facto customary use land are typical forwood resin tree users in other parts of northeast-ern Cambodia (Baird, 2009b; 2010a) and insouthern Laos (Ankarfjard and Kegl, 1998).

It would appear that local tenure over agri-cultural lands has been strengthened throughthe process of seeking communal land titles inMondulkiri, but rights over forest lands haveessentially been transferred to the state throughlegal means as part of the same process. For theBunong in Seima, the prospects for establishingcommunal land titles for agricultural areas, andsome fallow forest areas defined as agriculturalor reserve lands, have oddly and indirectlyresulted in their rights over the vast majority ofthe forests that they have long relied uponbeing legally taken from them, because theestablishment of communal land rights hasessentially resulted in local people having torecognise that the other forest lands outside ofthese communal areas are now considered tobe ‘state land’, although Bunong users of woodresin and other forest resources (i.e. bambooand fish) are gradually being issued with ‘cards’that are designed to provide access to theseresources (Evans et al., 2012). Still, the perma-nency of the rights associated with the ‘cards’remains unclear, because the system is new andis so far unproven in the local area and Cam-bodia more generally. Government supportcould falter if donor assistance for the areaended, or donor/NGO priorities changed.Moreover, even if some of the forest near theircommunities was designated as ‘communityforest’, the forest would officially remain underthe control of the Forest Administration, andrights would only be for 15 years (with possiblerenewal).4 Although villagers are still able togain access to many forest resources now – asthey are essentially surrounded by protectedforest areas – they could be excluded fromthese forests by the state (represented by theForest Administration), if the Forest Administra-tion decided that providing access is no longerappropriate for whatever reasons. Legally, com-



munities have little power, although manylocals are apparently happy about the prospectsof communal land tenure, at least at themoment, as they are aware that the forests andland in their community is subject to potentialpressure from people – especially capitalistinvestors – outside of the community (Ironside,2011; Evans et al., 2012).

Comparing communal land rights in Laosand Cambodia

Communal land rights in Cambodia are beingestablished quite differently from those in Laos,as in Cambodia they are only being allowed fora small group of registered Indigenous Peoples,while in Laos they are potentially available foreveryone in the country, whether Indigenous ornot. Anderson (2011: 1, original emphasis) con-siders that Cambodia represents a case, like thePhilippines, of ‘the permanent title model’ inwhich ‘the state fully and permanently handsthe land over to local indigenous communitiesfor private collective ownership’. There is,however, more to land titling than simply pro-viding permanent land titles. It also matterswhat is included within the titled land.

Communal land titling (din louam mou inLao) is in its infancy in Laos, and as of July 2012had only been established for five villages inSangthong District, Vientiane Province (seeFig. 1), which together received communal landtitles for 2189 ha of land (mainly forest land).Temporary titles were issued in July 2011.5 Thiswas followed, in February 2012, by the grantingof communal land titles by the governor of Vien-tiane Province. According to Article 22 of theLand Law and the Prime Minister’s Office,National Land Management Authority Ministe-rial Direction 564/NLMA (6 August 2007), thesetitles can become permanent after three yearsif there are no disputes related to them. Theland, however, cannot be sold (Foppes, 2011;Bounmany et al., 2012), which is also supposedto be the case in Cambodia (Jeremy Ironside,pers. comm., 30 August 2012), even if itremains to be seen if ways will be found tofacilitate the selling of communally ownedland, both in Laos and Cambodia. Moreover,following Walker (2001), one has to wonder ifgaining control of land that cannot be sold willalways be in the best interests of the people, as

it is possible to imagine, for example, situationswhen villagers might benefit from selling expen-sive land and using the revenue to buy largerpieces of less expensive land (see e.g. Baird, inpress).

It is unclear if Laos represents an example ofa permanent title model, like that in Cambodia,or a ‘delegated management model’ (Anderson,2011: 1, original emphasis), in which the statecontinues to claim ownership of the land. TheLao system presently has characteristics of both.On the one hand, the Lao state continues toclaim ownership over all the land in thecountry, even if private land trading is ubiqui-tous and condoned by the government. Thus,technically, communities are not receiving full‘ownership’ of land, regardless of the kind oftitle they receive. There are, however, elementsof the permanent title model in Laos. Forexample, actual land titles are provided,although sale of the land is not permitted.Moreover, permanent land titles can be pro-vided after a three-year period, if there are nodisputes.

The basis for granting communal land tenurein Laos is the 3 June 2006 Prime Minister’sdecree #88, which states that, ‘Communal LandTitles can be issued for all types of land thatoccur in the Lao PDR which are allocated by theGovernment to village communities’ (Foppes,2011: 2). Indeed, it would appear that commu-nal land titling in Laos is more inclusive than inCambodia because all rural residents have thepotential to gain communal titles, not just Indig-enous Peoples as in Cambodia. Secondly, evenfor Indigenous Peoples, the situation in Laosallows for forest areas to be included in com-munal land titles, which is not the case in Cam-bodia. The process for gaining communal titlesin Laos is also potentially quicker than it isin Cambodia. It is worth elaborating on thesedifferences.

First, I am all for Indigenous Peoples receivingstrong communal land rights, if they desirethem, and at least some clearly do, but thenon-Indigenous majority in Cambodia shouldbe given the same rights to obtain communalland rights for their community lands, sincethey, too, are facing serious land alienationproblems. Why not? It would not reduce thesignificance of Indigenous rights to communalland titles. Moreover, it would probably result in

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the majority of Cambodians better recognisingIndigenous communal land title, as they wouldhave the same rights and opportunities for landregistration. Thus, ironically, even though theLao Government does not recognise the inter-national definition of Indigenous Peoples,which at one level seems backwards andwrong, Laos actually has the potential toprovide communal land titles to more of thepopulation than Cambodia has.

Second, communal land titling in Cambodiais potentially a more cumbersome and time-consuming process than in Laos, as in Cambo-dia communities have to be registered asIndigenous by the Ministry of Rural Develop-ment and as legal entities by the Ministry ofInterior before becoming eligible for communalland rights, and that is not easy for many Indig-enous communities, especially those withoutinternational support (Galvin, 2012). It alsoforces them to perform reified ‘traditions’, orfeel obliged to maintain particular agriculturalsystems deemed acceptable for articulatingIndigenous identities by the state, but whichmight not meet the long-term interests ordesires of the people themselves (see Li, 2000;Walker, 2001). In Laos, neither the Indigenousnor the legal entity registration processes arerequired for communities to apply for commu-nal land titles, although the reality remains thatNGOs and other donors are necessary in Laosto push the process forward, as most govern-ment officials and villagers are so far unawareof possibilities for communal land titling. Still,NGOs and donors have not yet made signifi-cant efforts to strongly promote communal landtitling in Laos (Joost Foppes, pers. comm., 8 July2012).

Third, and crucially, communal land titling inCambodia is only permitted for agriculturallands, reserve agricultural lands and very smallareas of forest. Instead, the vast majority offorest land is defined as ‘state land’ in Cambo-dia. Thus, the recognition of communal landtitles in Cambodia also, ironically, comes withthe implicit recognition that all other forest landis owned by the state. As Evans et al. (2012: 75)have pointed out, ‘most natural forests in Cam-bodia, including all Community Forests, arestate owned’. This includes forest areas outsideof land under communal title. One could inter-pret new efforts to protect Indigenous lands

communally as part of what Polanyi (1944)called ‘the double movement’. That is, once thefree market has attempted to separate itself fromthe fabric of society, as has been the casethrough the separation of forest rights from vil-lager livelihoods via land concessions and otherforms of land grabbing (Baird, in press; NGOForum on Cambodia, 2006; Neef et al., 2013),the attempt to introduce communal land rightsis the type of social protectionism that Polanyisaw as society’s most likely response.

In Laos, legally all land is also owned by thestate, but crucially, communal land rights donot just apply to agricultural land, but aredesigned to include forest land as well. InSangthong District, for example, locals havereceived communal land titles for forest land(Foppes, 2011; Bounmany et al., 2012), some-thing that is not possible in Cambodia, for eitherIndigenous or non-Indigenous communities.

(Re)evaluating the 2001 Land Law in relationto Indigenous rights in Cambodia

So how should we ultimately evaluate the2001 Land Law in relation to Indigenous rightsin Cambodia? On the one hand, there is nodenying that it has been crucial for generating asense of legitimisation for the concept of ‘Indig-enous Peoples’, as peoples different from themajority and justifying particular rights. Specifi-cally, the 2001 Land Law provided state recog-nition of Indigenous rights, a concept that is stillless developed in Asia than in other parts of theworld, especially in the Americas and Oceania(Gray, 1995; Erni, 2008). This may, in fact, bethe most important achievement of the 2001Land Law, if one assumes that adopting theconcept of Indigeneity is a positive thing.Regardless of the above, on the practical level,in relation to the actual rights provided to Indig-enous Peoples, and the relationship of thoserights to other forest users, the Land Law needsto be subjected to more scrutiny, as the separa-tion of agricultural lands from forest lands hasresulted in communal land titling mainly cover-ing agricultural lands, while forest lands havebecome increasingly reified as state owned.Oddly enough, the Land and Forestry Laws havenot been heavily critiqued, possibly becausemany international donors and NGOs do notwant to discredit legislation that supports the



concept of Indigenous Peoples. Indeed, onecould argue that many in civil society organisa-tions have been quite naïve about the circum-stances. Taking a political economy approach,and considering the insights of Polanyi (1944),would seemingly be a useful way forward.

The granting of communal land titles to Cam-bodia’s small Indigenous population has inad-vertently institutionally and legally obstructedopportunities for Cambodia’s non-IndigenousPeoples, including those highly dependent onforests for their livelihoods, from receiving com-munal land rights. While it is true that mostCambodians do not presently want communalagricultural land titles (probably at least par-tially because communal land titling hasbecome discursively associated with beingIndigenous in Cambodia, and they do not seethemselves as being Indigenous), the reality isthat some non-Indigenous Peoples might benefitfrom communal land titling. For example, somedo conduct swidden agriculture, and in addi-tion, various other types of agricultural landsused by lowlanders would potentially benefitfrom communal titling, such as pasture land forgrazing cattle. In Laos, the first group thatgained communal land titles was a lowlandethnic Lao group that wanted communal forestland in order to support bamboo cottage indus-tries (Bounmany et al., 2012). This could also beimagined for non-Indigenous groups in parts ofCambodia. Crucially, the 2001 Land Law inCambodia has promoted the idea that lowlandKhmers have rights over individual private plots,while Indigenous Peoples have rights to com-munal land, and the government has the rightsover forest lands (Peter Swift, pers. comm., 19August 2012). This is potentially problematic forIndigenous Peoples who might also desireprivate land rights (see Walker, 2001).

So, what are the options for Indigenous andnon-Indigenous Peoples in relation to forests inCambodia? While communal land titling of sig-nificant areas of forests is not yet possible, allCambodians, including Indigenous Peoples, dohave possibilities for establishing communityforests, which provide communities withlimited rights over forest resources. But theyare not long-term rights, as at present commu-nities can only receive community forests for15-year periods, although renewing theseagreements is potentially possible, provided

that the Forest Administration approves the pastconduct of those communities responsiblefor the community forests. Community forestsare also being established for villages withinSeima Protected Forest (Jeremy Ironside, pers.comm., 30 August 2012). Still, even those withcommunity forests have quite limited, tempo-rary and conditional rights, with the ForestAdministration retaining most of the powerover how community forests are allocated andmanaged. This is a far cry from decentralisedcommunity rights over forests. As one long-time observer of Cambodia forestry issueswrote, ‘in its present form, community forestrycannot provide protection to significant areasof forests in Cambodia, for Indigenous Peoplesor non-Indigenous Peoples’ (Peter Swift, pers.comm., 19 August 2012). It could be argued,however, that the circumstances are legallymore advantageous than what people have hadin the past, and that it will be more difficult forthe Forest Administration to take forest frompeople once it has been established as com-munity forest (Jeremy Ironside, pers. comm., 30August 2012).

While the situation in Laos looks potentiallymuch more promising at the moment, weshould remain cautious about the future ofcommunal land titling there, as the governmentof Laos does not have a good record when itcomes to providing local communities withlong-term rights over valuable forest resources(see e.g. Anonymous, 2000; Hodgdon, 2007,2008). In addition, it remains unclear whetherthe new Land Law presently being developedin Laos, and expected to become law in 2013,will continue to uphold the present systemfor communal land titling in the country(Joost Foppes, pers. comm., 8 July 2012). If itdoes not, the future of communal land titlingin Laos could look much less promising. What-ever the case, the point is that it is possible toimagine communal land titling, or other typesof land tenure arrangements, that providemuch more secure access to the generalpopulation than is presently evident inCambodia.

Moreover, considering the amount of landalienation presently facing Cambodia, espe-cially in Indigenous areas (COHCHR, 2004,2007; NGO Forum on Cambodia, 2006;CHRAC, 2009, 2010; Danida, 2010; Ironside

I.G. Baird


and Nuy, 2010; Ironside, 2011; Neef et al.,2013; Baird, in press), communal titling of agri-cultural land still provides some level of landsecurity (especially in relation to agriculturalproduction) for Indigenous Peoples.

Conclusions

To be clear, my arguments should not be inter-preted as implying that I am unsympathetic toproviding rights, including land and forestrights, to Indigenous Peoples. In fact, I have longsupported Indigenous land rights in Cambodia.Furthermore, it must be acknowledged that the2001 Land Law and 2002 Forestry Law havebeen symbolically and practically significant forestablishing Indigenous rights in Cambodia,which have been empowering for many. Theyhave certainly been ontologically crucial. But inthe particular case of communal land rights forIndigenous Peoples in Cambodia, the majormaterial achievement of the 2001 Land Law forIndigenous Peoples, when considered in com-parison with Laos, has so far constituted a muchnarrower and limited victory than originallyhoped or believed. The future of communalland and forest rights in Laos are far fromcertain, but the situation in Laos does at leastindicate that more is potentially possible in rela-tion to communal land rights than what has sofar been achieved in Cambodia, both for Indig-enous and non-Indigenous Peoples. It alsoreminds us of the potential disadvantages of the‘Indigenous Slot’ in Cambodia (see Li, 2000;Walker, 2001). Indeed, there are undoubtedlycases where obtaining private land would makemore sense for Indigenous Peoples (see Milne,2013).

My main point is that recent achievements ofIndigenous Peoples in Cambodia have been sig-nificant, but communal land rights in Cambodiashould not be considered adequate, as commu-nal land titles so far do not include the provisionof communal rights over forests, an issue ofgreat importance for those whose livelihoodsare heavily dependent on forest resources. Thisis a point that other authors and civil societyorganisations who have examined communalland rights in Cambodia have so far largelyfailed to address. Thus, the advocacy efforts forIndigenous land rights in Cambodia havebegun, but much more is needed to ensure that

appropriate land and forest rights are providedto rural Cambodians, whether Indigenous ornot. And finally, the links between the expan-sion of capitalism and the separation ofresources from society, and associated attemptsto protect Indigenous rights, should be moreseriously linked, as Polanyi (1944) mightsuggest.

Notes

1 It should be noted, however, that Article 42 of the For-estry Law (2002) accommodates customary user rightsin Forest estates, including by Indigenous Peoples andethnic Khmer. This can include rights to non-timberforest products.

2 Danida is the term used for Denmark’s developmentcooperation, which is under the direction of Denmark’sMinistry of Foreign Affairs.

3 It should be noted that the Forest Administration estab-lished its own ‘protected forest’ system in the late 1990sin response to the establishment of Cambodia’s NationalProtected Areas system, which is under the jurisdictionof the Ministry of Environment, and was established firstin 1993 (see Baird, 2009a for a brief review of theprotected area system under the Ministry of Environ-ment). Thus, there are now two major protected areasystems in the country, one under the Forest Administra-tion and the other under the Ministry of Environment(Baird, 2009a).

4 Evans et al. (2012) report that as of July 2011, there were430 official community forests in Cambodia, covering377 502 ha.

5 The differences between ‘communal land’ and ‘collec-tive land’ are presently being debated in Laos, and thetype of land tenure arrangement in Sangthong may endup being classified as ‘collective land’ rather than ‘com-munal land’. However, at the time of registration, theland in question was called communal land (din louammou in Lao), and so I retain that term here.

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