Losing Ground - Human Rights Party.

Losing Ground
Indigenous Community Lands
As discussed above, there is a classification of land called
Collective Indigenous Community Property, which gives
ownership of traditional indigenous lands to the entire
community. This right does not bestow individual ownership
rights on members of the community, but permits the land
to be owned and managed according to traditional custom.
Currently, no indigenous land in Cambodia is registered as the
relevant implementing laws are still pending.
Legal framework
The Sub-decree on Procedures for Registration of Indigenous
Community Land was passed in May 2009, however, before
land can be registered, the community must first be registered
as a legal entity with the Ministry of Interior. 45 The procedure
for registering the community will be set out in a sub-decree
drafted by the ministry, however, there is no public draft of
this sub-decree, and no clear information on when it will be
completed and passed. In addition to this, draft documents
for the Land Administration Sub-Sector Program 46 state that a
further prakas on registering indigenous land will be drafted.
Interim protection
Although it is still not possible to legally register indigenous
land, and in all likelihood may not be possible for some time,
Article 23 of the 2001 Land Law provides strong and immediate
interim protection of indigenous communities’ rights: “Prior to
their legal status being determined under a law on communities,
the groups actually existing at present shall continue to manage
their community and immovable property according to their
traditional customs and shall be subject to the provisions of this
law.” The indigenous community therefore shall be subject to
legal protection even though they are yet to be registered.
According to Article 23 of the Land Law 2001: “An
indigenous community is a group of people that resides in
the territory of the Kingdom of Cambodia whose members
manifest ethnic, social, cultural and economic unity and who
practice a traditional lifestyle, and who cultivate the lands in
their possession according to customary rules of collective use.”
However, local authorities and private companies sometimes
avoid the strong protections of the land law by claiming that
certain communities are not an indigenous community because
they no longer wear traditional clothing (banned during the
Khmer Rouge reign) and because they now use mobile phones
and motorbikes. This however is not a valid claim if the
community still practices a collective way of life, for example,
collective decision making.
Article 25 of the Land Law states, “The lands of indigenous
communities are those lands where the said communities have
established their residences and where they carry out traditional
agriculture.” Paragraph 2 of the same Article emphasizes that,
“The lands of indigenous communities include not only lands
actually cultivated but also includes reserved lands necessary for
the shifting of cultivation which is required by the agricultural
methods they currently practice and which are recognized by
the administrative authorities.”
The indigenous community lands however are not only for
residences and traditional agriculture. During a debate on
Chapter 3 of the Land Law at the National Assembly, Bou Thong,
member of the National Assembly from Ratanakkiri explained
that, “The management styles [of indigenous people], there
are three to four styles: management of lands for residence,
management of lands for subsistence such as farmlands,
management of lands as a reserve lands or abandoned lands,
and fourth, management of lands as spirit forest and land, a
place for worship the one’s whole life. No one or organization
can violate the indigenous tradition.” Spirit forest land and
burial forest land are included in the definition of indigenous
community land entitled to be registered as collective land. 47
Further to this, various statements have been made by
government officials and institutions, for example, the Council
on Land Policy and provincial authorities in Mondulkiri and
Ratanakkiri, that the transfer of indigenous property to people
outside the community is illegal.
Local authorities and private companies
sometimes avoid the strong protections
of the Land Law by claiming that certain
communities are not an indigenous
community because they no longer wear
traditional clothing (banned during the
Khmer Rouge reign) and because they now
use mobile phones and motorbikes.
45
Article 3, Sub-decree on Procedures of Registration of Land of Indigenous Communities.
46
One of the three Ministry of Land sub-sector programs that make up the Land Administration, Management and Distribution Program. The other two are the Land
Management Sub-Sector Program and Land Distribution Sub-Sector Program.
47
Sub-decree on Procedures of Registration of Land of Indigenous Communities, Article 6.
70
Forced Evictions and Intimidation in Cambodia