The webinar “Pathways to Customary Land & Forest Rights in the Mekong” took place on July 2nd, 2024. This was the second webinar in the series ‘State of Land in the Mekong region’ which aims to highlight the evolving environment of land governance in this dynamic region, including Cambodia, Lao PDR, Myanmar and Vietnam. The webinar attracted 240 participants and featured experts from the Mekong region. The webinar was organized by the Land Portal Foundation and the Mekong Region Land Governance and drew on findings from research and activities conducted by the Mekong Region Land Governance (MRLG) Project and its partners on the recognition and formalization of customary tenure rights across the Mekong region.
The webinar started with a presentation that highlighted key themes from two important regional publications: "The Recognition and Formalization of Customary Tenure in the Forest Landscapes of the Mekong Region: A Polanyian Perspective" and a co-publication with the Centre for Development and Environment (CDE) "State of Land Brief: Recognition of Customary Tenure in Forest Landscapes of the Mekong Region."
Natalie Campbell, Regional Customary Tenure and Gender Advisor for Mekong Region Land Governance, moderated the panel, which featured the following speakers:
- Jean-Christophe Diepart, Researcher & Lecturer, Agrarian studies in the Mekong region
- Stony Siang Awr Cung, Focal Point for Customary Land Tenure Rights and Biodiversity Conservation, Promotion of Indigenous Peoples and Nature Together (POINT), Myanmar
- Il Oeur, Executive Director, Analyzing Development Issues Centre, Cambodia
- Dr. Van Hong Ngo, Director, CEGORN, Vietnam
- Hongthong Sirivath, Land and Livelihood Program Coordinator, Village Focus International (VFI), Laos
Please see a brief recap of the full captivating conversation.
First round of questions: The evolution and recognition of customary tenure
How has customary tenure evolved in Laos over time, and how has the legal situation changed? How does your government address customary tenure recognition for local communities?
Hongthong: In Laos, since 1975 the majority of Lao people have used customary land. The government had a policy to enhance the recognition of customary tenure through the land use planning process. The government started to have a policy on land use planning in 1979 and assigned the Ministry of Agriculture and Forestry for the first time to pilot the land use process in 1993 and then endorsed guidelines in this regard in 1996, which was then improved in 2009 to become Participatory Land Use Planning or PLUP. In 2019, the revised forestry law and land law officially recognized customary land tenure of people living inside the forest areas, which was not the case in the past. Recently, the resolution of the Standing Committee of the National Assembly was endorsed in order to make issuing land titles possible and land use certificates for those who live inside the forest areas.
Across the country, there are 3167 villages or 1/3 of the total number of villages located inside the forest areas. All people who lived in those villages up until now did not have their land tenure recognized. To help recognize customary tenure of those people, the government of Laos with the support from development partners, is now adjusting the legislation and piloting the recognition of land tenure of people who live inside the forest areas. The pilot will help improve the policy, legislation and technical guidelines for rolling out throughout the country.
How has customary tenure evolved in Vietnam, and how has the legal situation changed as well? Can you address forest tenure for communities and land conflicts?
Hong Ngo: Customary land and forest tenure in Vietnam has existed for thousands of years, going throughout the country's history. This may be seen in different periods of time. Regardless of any period, the traditional tenure system has ups and downs but always stands firm, affirming its role in the country's development process. In the Vietnamese context, land and natural forests are owned by the entire people, with the State representing the owner and unified management. However, historically, ethnic communities have approached, managed, and used this type of natural resource for many generations. The rules, laws, and institutions for managing these resources are formed by the community and the community recognizes and operates them for all daily life activities of the community, which are often called traditional institutions of the community. Currently, the community land and forest ownership is officially organized in the Forestry law 2017 and Land law 2024. Land conflicts are happening in different areas in Vietnam and in ethnic minority areas due to economic development, urbanization and population growth and gaps between law and law enforcement, contradictions amongst laws.
What is the evolution of customary tenure in Myanmar and the implications for Indigenous peoples there?
Stony: Myanmar, like many ASEAN countries, consists of various Indigenous communities, known locally as Ethnic Nationalities since the term "Indigenous Peoples" is not officially recognized. Each group has unique cultural practices, traditions, and methods of land management. Agriculture is the main livelihood in Myanmar, making land vital for the people, especially in Ethnic National and Indigenous areas. Customary tenure practices, which have been in place since before colonization, play a crucial role in their way of life and preservation of their livelihood.
Recognizing customary tenure is crucial in Myanmar for cultural identity and native species preservation, especially since most agricultural land lacks proper legal recognition and protection in indigenous areas. In 2016, the government adopted the “National Land Use Policy” to initiate legal recognition of customary tenure through a “New Land Law.” However, due to political crises, this law has not yet been enacted. The lack of recognition and protection of customary tenure has led to land loss and confiscation for protected area management, mining, and green grabbing by the government and elites.
What about in Cambodia? How has customary tenure evolved over time and what is the role of government and impacts on land use?
II: Customary tenure in Cambodia has historically involved communal management of land resources, especially in Indigenous communities practicing shifting cultivation and other traditional methods. The legal recognition of customary tenure began with the Land Law of 2001, which explicitly acknowledged the rights of Indigenous Peoples (IPs) to their ancestral lands (Articles 23-28). Further legal instruments, such as sub-decrees on Community Forestry (2003) and Community Protected Areas (2007), have strengthened this recognition. Further legal support was provided by sub-decree No. 83 in 2009, which outlined procedures for communal land title registration, and the Forestry Law of 2002, recognizing Indigenous Peoples' rights to forest resources.
Climate financing and initiatives like REDD+ have influenced customary tenure by integrating traditional land management practices into carbon credit schemes. Increased agricultural investment and economic land concessions have led to land conflicts and displacement of indigenous communities, affecting their tenure security. Green grabbing and protected area management for carbon sinks have restricted Indigenous Peoples’ access to traditional lands, necessitating a balance between conservation efforts and community rights. The intersection between carbon sinks schemes and the territories of local communities necessitate careful integration of customary tenure. As of 2024, Cambodia has a substantial number of Community Protected Areas (CPAs) and Community Forests (CFs). According to the Ministry of Environment, there are 173 CPAs covering an area of 530,000 hectares across the country. Community Forests are also significant, with 647 CFs established, encompassing around 629,000 hectares.
Second round of questions: Challenges and solutions in customary tenure recognition
What are the major challenges Laos faces in recognizing customary tenure? How are these challenges being addressed, and in your opinion are these solutions adequately addressing these challenges? How can approaches to increase tenure security be made more inclusive of local communities?
Hongthong: There are some challenges in recognizing customary tenure. Firstly, local communities especially those who rely on customary land did not know about their land rights according to laws and regulations. Various stakeholders still do not know much about the issues related to customary tenure and can therefore have difficulty advocating for their rights. Grievance redress mechanisms at local level are still very weak and need a lot of capacity building to make sure that they have enough capacity to protect land users. There have been limited resource and capacity among government officials to promote the customary land tenure across the country.
To address these challenges, there is a need for development partners and international organizations to provide support. This support should include building awareness and providing legal education to communities on their land rights, building capacity of government officials on customary tenure recognition and grievance redress mechanism, and also bring in good practices such as the Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) and the Principles for Responsible Investment in Agriculture and Food Systems (RAI).
Approaches to increase tenure security should be made more inclusive of local communities and should apply FPIC throughout the process. Local communities who use customary land need to understand the process including benefit and impact to their livelihood and also be involved in the decision making process.
How are the challenges different in Myanmar with regard to Indigenous and local communities? What is being done to overcome them?
Stony: Lack of ownership over customary land is a major challenge, leading to decreased customary practices and the privatization of community land. Two main factors contribute to this issue. The first is the abolishment of Indigenous governance, where In 1962, the government dismantled the ethnic/Indigenous chieftainship system, a customary institution of governance, and replaced it with village administration under central government control. The other is the 2008 constitution, known as the "Green Book," this constitution declares that "all land and natural resources are state properties." Additionally, laws such as the Farmland Law, Vacant, Fallow, and Virgin Land Law, and Land Acquisition Law favor land grabbing over customary land rights.
These factors have led to reduced customary practices and the privatization of community land under legislated law. As a result, there is less understanding and sense of ownership over customary lands, which negatively impacts environmental conservation efforts, climate change mitigation, and biodiversity conservation. Therefore, In 2018, the MRLG alliance was formed to recognize, protect, and promote customary tenure in Myanmar through a legal framework. The work includes documenting existing customary tenure practices across the country for evidence-based advocacy, producing thematic studies, and proposing options for recognition.
Despite the current political situation making policy advocacy challenging, the alliance continues to document customary tenure practices, raise awareness, and revitalize good practices. The aim is to be prepared for the recognition of customary tenure once the political situation stabilizes.
Third round of questions: Unpacking successful examples
Can you share successful examples of customary tenure recognition in your country? What factors contributed to their success? How can these successes be scaled up or replicated in other areas?
II: Some examples of success in Cambodia include pilot projects in Ratanakiri and Mondulkiri provinces, supported by GTZ and Danida. These projects resulted in the registration of communal land titles and provided a model for other communities. Factors contributing to success include strong community cohesion, effective NGO support, and government commitment to the process. Replication in other areas can be facilitated by sharing best practices and adapting successful models to local contexts.It is essential to ensure strong community organization, sustained support from NGOs, and continued government cooperation across different areas.
Hongthong: Some examples of customary tenure recognition in Laos can be found. One example is in the southern part of Laos, where land of villagers was being taken by a concession company. With village solidarity in nature, good support from local authorities that villagers have personal connections with and support from NGOs, the community was able to overturn plans to develop a concession and get their land back from the company. Secondly, the recognition of customary tenure was recognized through communal land registration using the land tool called Social Tenure Domain Model (STDM) for communities in XiengKouna and Louangphrabang, Northern Laos. By using this STDM tool, the communal lands were mapped and linked with social aspects of users. This example shows how the use of technology can enhance the customary tenure recognition of local communities.
Fourth round of questions: Access to land data and information
What are the implications of lack of access to land information in Vietnam and what that means for local communities?
Hong Ngo: Land conflicts are occurring in many parts of Vietnam due to economic development, urbanization and population growth and gaps between law and law enforcement. The government has been finding various solutions to address this situation. In practice, various ethnic minorities have continued to access land and forests informally and often illegally, and this has been a continuous source of land conflicts that are substantially unreported. Some communities are not well informed about land administrative decisions made by local authorities due to both subjective and active reasons. Local villagers follow informal community approvals and skip the government complex procedures, which impacts their tenure security. They do not understand what government services are available and how to access it. If they try to follow those procedures, they often lack the appropriate documentation and proof of occupation as well as citizen identification required for completing recognition. Collective lands and forests are privatized by individuals and sold without community approval and no legal oversight. This is a common source of disputes that could be avoided if people were better informed about their rights and if public services were more easily accessible
To overcome these challenges, the action will support the implementation of existing government priorities through a comprehensive strategy combining the empowerment of communities to claim their rights and engage with local authorities, linking local authorities, government agencies with ethnic minorities and strengthening local authorities’ capacity to deliver on key government programmes, such as the dissemination of the new Land Law and land rights for ethnic minorities and access to legal aid for resolving land conflicts.