Kingdom of Cambodia Public Disclosure Authorized IPP263 Nation Religion King Land Allocation for Social and Economic Development Public Disclosure Authorized Public Disclosure Authorized Indigenous Peoples Planning Framework December 2007 Public Disclosure Authorized A. Purpose This Indigenous Peoples Planning Framework applies to all local SLCs receiving financial or technical assistance from Land Allocation for Social and Economic Development project (LASED) and describes the principles that the National Committee on Social Land Concession (NSLC) and the National Committee on the Management of Deconcentration and Decentralization (NCDD) has decided to follow in order to avoid or mitigate adverse impacts by the LASED project on indigenous peoples. B. The LASED Project The 2001 Land Law has created a legal mechanism called Social Land Concession (SLC) to transfer parts of State land to landless and land-poor families for residential and/or family farming purposes. Local SLC programs are initiated at commune level while national SLC programs relate to larger operations. The LASED project will facilitate implementation of SLCs in communes undertaking a local SLC program. It will do so in two ways. First, the project will support establishment of local SLCs, it will finance subsequent rural development in communes with SLC programs. At the time this policy framework was prepared, two provinces, Kampong Cham and Kratie, had been selected for piloting the social land concession projects and Kompong Thom has been selected as a third project. Second, LASED will support Royal Government of Cambodia (RGC) to develop an SLC Operations Manual, which to be adopted for use nationwide for LASED. The manual is expected to create a standard approach for future commune-initiated SLC programs that will be developed with support from RGC, other development partners or NGOs. Initial national guidelines have been drafted during project preparation based on experience gained in 3 pilot communes preparing a total of 2 SLC programs. C. Indigenous People in Cambodia______________ The population of Cambodia is 13.7 million of which 90-95% are Khmer. The remaining 5- 10% is composed of ethnic minorities such as the Muslim Cham, Chinese and Vietnamese, and seventeen indigenous ethnic minority groups also called “Khmer Loeu” or “hill tribes” who are ethnically non-Khmer. These groups are estimated to comprise around 120,000 persons and constitute about 1% of the Cambodian population. There are seventeen indigenous minority groups which range from 300 to 19,000 members and include Tampuan, Kui, Jarai, Phnong, Kreung, Kavaet, Brou, Stieng, Lun and others.1 Indigenous groups constitute the majority in the provinces of Rattanakiri (67.9%) and Mondulkiri (59.3%). Under LASED and for the purpose of the World Bank’s OP 4.10 on Indigenous People, only the ethnic minority groups belonging to the “Khmer Loeu” or “hill tribes” are considered indigenous people. In the two selected project provinces, indigenous people constitute about 10% (around 30,000 persons) of the rural population in Kratie province, and 5% (around 5,000 persons) in the Memot district in Kompong Cham province. Many of the indigenous people in Kratie were resettled from the uplands under state sponsored schemes in the 1970’ies, do not rely on shifting cultivation, are bilingual, and reside in communes that also include Khmer villages. The Memot district in Kompong Cham province comprises villages of the indigenous 1 Pathways to Justice: Access to Justice with a Focus on Poor, Women and Indigenous People, Ministry of Justice, UNDP, September 2005, p. 59. 2 minority group Stieng, who are in transition from shifting cultivation to perennial land use (partly due to pressure on land from Economic Land Concessions), are bilingual, and some identify as Khmer rather than Stieng (as is the case in the Choam Kravien pilot commune). In both areas, indigenous communities tend to rely more than Khmer on collection of non- timber forest products (NPTF) and grazing in “vacant” areas. In both areas, the representation in commune councils of indigenous minority villages is often either absent or substantially weaker than that of Khmer villages within the communes. D. Legal and Policy Framework__________________ The constitution of Cambodia, Article 31.2 stipulates that “Khmer citizens shall be equal before the laws and shall enjoy the same rights, freedom and duties, regardless of their race, color, sex, language, beliefs, religions, political tendencies, birth of origin, social status, resources, and any position”. Article 44 guarantees the legal right to own land equally for all Khmer citizens: “All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land”. The Land Law 2001 recognizes the right of indigenous communities in Cambodia to own immovable property - their land - with collective title. Article 23 in the law defines an indigenous community as: • A group of people who manifest ethnic, social, cultural and economic unity, • Who practice a traditional lifestyle, and • Who cultivate the lands in their possession according to customary rules of collective use. Article 25 in the law defines indigenous community lands: “The lands of indigenous communities are those lands where the said communities have established their residencies and where they carry out their traditional agriculture”, and these lands “include not only lands actually cultivated but also includes reserves necessary for the shifting cultivation which is required by the agricultural methods they currently practice”. Article 25 also states that “the measurement and demarcation of boundaries of immovable properties of indigenous communities shall be determined according to the factual situations as asserted by the communities, in agreement with their neighbors”. Article 26 states that “ownership of the immovable properties described in Article 25 is granted by the State to indigenous communities as collective property. This collective property includes all the rights and protections of ownership as are enjoyed by private owners”. A Policy on Registration and Right to Use of Indigenous Peoples Communal Land has been drafted by the General Secretariat of Council of Land Policy in May 2007, and is expected to be adopted in the near future. This policy takes as its basis the recognition in the Land Law of 2001, of the right of indigenous communities to own immovable property as collective title. The policy states that the registration of indigenous peoples’ communal land as collective title is different from the registration of individual privately owned land parcels because the registration of indigenous peoples’ communal land is covering all lands that they traditionally use, consisting of both state public land and state private land. The draft Policy identifies preparation of a legal framework for registration of indigenous peoples’ communal land as a key step to realize this right. A planned sub-decree will define the procedures for demarcating indigenous lands, registering such land, and issuing ownership certificates that recognize the collective occupation and rights of each community. The Forest Law 2002, (Article 11, 15, 16, 40) guarantees and recognizes the right of indigenous peoples to continue the use and access to certain forest areas which these 3 groups traditionally use and to practice their way of living in term of enjoyment of benefits from the forest. E. Indigenous Peoples Planning Framework_______ Since LASED comprises multiple commune level sub-projects that are not identified by appraisal, an Indigenous Peoples Planning Framework (IPPF) will be applied to the preparation of sub-projects. The IPPF takes into account both the legal provisions pertaining to land and indigenous communities, and the participatory Commune level planning process for SLCs under LASED. The provisions in the Land Law, the Forest Law, and the draft Policy on Registration and Right to Use of Indigenous Peoples Communal Land regarding the right of indigenous communities to collective ownership of the areas they traditionally use will require a different approach to the collective titling of lands held by indigenous communities compared to that applied by LASED to the individual titling for landless or land-poor households to small land grants within SLCs. In view of the basic difference between an approach for individual titling for small land grants to landless or land-poor households within SLCs, and that required for provision of collective title to indigenous peoples’ lands, the LASED will: • not finance establishment of SLCs in areas predominantly inhabited by indigenous peoples (identified through the provincial “hot spots” mapping); • apply an approach in the areas where the project is implemented that avoids including lands predominantly used by indigenous communities in SLCs (identified through the commune level social screening and land use mapping – see Annex 1); Notwithstanding the above, the SLC planning approach as described in the LASED Implementation Manual and in the Resettlement Policy Framework includes the following principles: • In communes where SLCs are established, and which include indigenous minority hamlets or settlements, households from these will be entitled to apply for plots within the SLCs at par with other commune members on a voluntary basis; • To both facilitate that indigenous land use is taken into account