Mr. Le Trong Hai

Changes in legal framework from 1980 to present – focus on changes in land use rights - emphasise 5 land use rights (1993)

Changes in land holders – from state to private, SOEs, households Cooperative, community

Market liberalization, investment and migration accelerate transfer of land among different land holders (coffee, shrimp) (between rich and poor, kinh and ethnic minority)

Some ethnic minorities (Thai, Tay, Nung, Ede, Hmong, etc.) has customary land laws – examples about spiritural forests, water sources, etc.

Customary land laws and community land ownership has not been recognized properly by state law

Recently, some efforts have been made to integrate customary laws into state laws: hamlet regulation (huong uoc), land laws and forest protection and development law recognize community ownership over land and forest (civil code does not recognize community as a legal entity)

The H’mong’ s customary law. In this custom, they give more and remind conventions of forest protection, they re-define ways of punishment if somebody breaks it. Someone does not respect this custom, they will punished as same as the cattle destroys crop, forbidding strickly someone burns off land for cultivation. If someone penetrates free into a forest to cut tree down, he will punished one pig or from 50.000VND to 100.000VND.

The Thai’s customary law: If somebody wants to burn off land for cultivation, he must allowed by the hamlet head; If he makes themselves, he will punished from one to three a bar of silver, wine, and meat. Every year, in the end of lunar May people are allowed to penetrate into a forest to get bamboo shoot, but they only get the first and forth broods. If someone breaks, he will punished a bar of silver, wine, and meat. A timber or cinnamon tree in the forest is small or big, if in the body of tree is marked by(+) or (x), it means this tree belongs to someone, nobody is allowed to cut that tree down.

The Tay’s customary law: forbid to fire the forest, someone steals forest tree of other one, he will punished threefold of the loss.

The Nung’s customary law (Ha Giang): households are not allowed to cut the forest tree down, to burn off land in the riverhead areas. Not to pick bamboo shoot up or let buffalo eat the other one’s bamboo shoot. If somebody breaks, he will punished by five kg of paddy and one bamboo shoot.

The Kho Mu’s customary law: someone cuts tree down in the forbidden forest, he will punished by money or seized to confiscate, If someone breaks into “Gostforest “[1], he will punished by chicken, wine, rice, first is to worship following is for people eating and to remind that not break again.

The E De’s customary law (Tay Nguyen) defines behaviors of the forest destruction and burning. 80th clause of E De’s customary law defines: “Men usually burn uncontrolled, women usually burn unseemly, someone burns as a crazy man or stupid man. Cay le is budding, they cut top of tree down, cay lo o is budding, they cut young shoot down. If they are arrested, they will brought to a rich house of tribe head, they will tied their hands and feet at once… So that there are a serious problem, they need to be judged”. 231th clause of E De’s customary law defines: “Land, river, stream, and forest tree are basket, large basket, and back of our grandparents who are people to keep a cave, to care the forest, K’tong and Kdjar trees”, someone encroaches the forest and the forest land of the other one, he will judged.

For village regulation, Intercircular No 03/2000/TTLT/BTP-BVHTT-UBTUMTTQVN dated March 31st ,2000, of Interministry of Justice- Culture and Information- Vietnamese Fatherland Front Central Committee on issuing and implementing the regulations of village, hamlet, small village, population groups, etc..: “the regulation is a social normative act that defines common behavior regulations and they are issued and aggreed by all people to adjust the social relations that are selfmanagement of people in order to preserve and bring into play good manners and customs and tradditional culture in the village, hamlet, small village, population groups so it gives a positive contribution to the state management by the law.

Article 29.- Assignment of forests to village population communities

a/ The village population communities have the same customs, practices and traditions of close community association with forests in their production, life, culture and belief; are capable of managing forests; have demand and file applications for forest assignment;

b/ The assignment of forests to village population communities must be in line with the approved forest protection and development plannings and plans; and match the capacity of the local forest funds.

Forest land area managed by communities

Protection and Special use forests Production forests

Total Natural forest

Plantation forest

Bare land Total Natural forest

Plantation forest

Bare land

In total: 2.792.946,3

1,968,500.4 1,404,829.4 40,953.7 522,710.0 824,445.9 426,802.9 43,583.2 354,059.8

1.643.254,1 ha

allocated

1,164,515.0 803,191.6 18,546.6 342,776.8 478,739.1 134,735.5 30,566.5 313,437.1

247.029,5 ha

Not yet allocated

146,338.7 107,093.0 5,786.3 33,459.4 100,690.8 55,142.1 7,373.8 38,174.9

902.662,7 ha for contracting

657,646.7 494,544.8 16,620.8 146,473.8 245,016.0 236,925.3 5,642.9 2,447.8

Source: Forest Department – Synthesized from reports prepared by 37 provinces, cities in March 2008

Region Forest land area managed by communities in different regions and the percentage

compared to the figures nation wide

Forest land area managed by communities categorized according to origin, and percentage compared to the entire region

Allocated Not yet allocated Contracting

Nation wide 2,792,946.3 100 1,643,254.1 100 247,029.5 100 902,662.7 100

North West 1,893,300.9 67.8 1,263,675.6 66.7 45,248.4 2.4 584,376.9 30.9

North East 760,131.1 27.2 319,859.9 42.0 181,932.9 24.0 258,338.3 34.0

North Central 58,541.7 2.1 40,489.1 69.2 18,052.6 30.8 0 0

South Central 5,737.3 0.2 0 0 1,124.4 19.6 4,612.9 80.4

South West 62,422.3 2.2 19,229.6 30.8 671.2 1.1 42,521.5 68.1

North East 0 0 0 0 0 0 0 0

Mekong river delta

12,813.1 0.5 0 0 0 0 12,813.1 0

Source: Forest Department – Synthesized from reports prepared by 37 provinces, cities in March 2008

Changes in state law, market liberalization and late recognition of customary law have resulted in some consequences

Landlessness, forest loss and land conflicts (Central highlands, Mekong Delta, land mortgage in Soc Trang/Ca Mau)

Changes in farming techniques (shifting cultivation to resettled) and land-use (food crop to industrial crops (coffee, rubber)

This leads to: increasing income gaps – higher risks, less opportunity for the poor and EM

Before 1975

2009

Community and customary law Natural resouces: forest land Obsession Hamlet: Losing land ownership,, living space/narrowed

culture, component of changed population, institution of traditional selfmanagement is winded up, customary law is denied.

Three fulcrums of Traditional culture subject

Obsession

VillageCom- mu-nity

Nature

- Nature - God/Ghost - Death - Being abandoned - Morality

Culture subject

- Ethnic group - Blood relationship - Ownership - Customs - Sublimation - Belief - Hand down

----------- - Rule - Auto-control

institution

- Land - Forest - Floral - Fauna - Water - Annual

cycleof climate,weather

Human: - Skill - Lifestyle -Behavior threshold

Time

Alien impact is selected, recreated and made village-like by the culture subject. At the same time, ethnic village culture also scatters, spread and affect other ethnic groups.

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VillageCom-

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Nature

Policies: - Land - State Management - Labour re-arrangement - New culture - Development - Public services

Market Indus. –Modern.-Global. Communication Immigrants

New knowledge Multidisciplinary skill Multilateral relations Diversified lifestyle New consumption culturei Denied or deformed

obsession

Obsession

Society

Market

National assembly: law making MONRE and MARD: executive CEMA: ethnic minorities focuses Vietnamese Fatherland Front: solidarity and

unity promotion

Customary law has been undermined and eroded

Civil code has not recognized community as a legal entity

Customary law has been recognized fully by state law – there are deviation

Ethnicity and sovereignty are sensitive issues in Vietnam

Unbalanced power relation between EM and other actors

State commit to support ethnic minority: 135 program, 30a resolution, 134 program on land, “tam nong”

Land law revision (i) Recognition for specificity of region/ethnicity in land law revision (ii) Consultation process to input this law revision (MONRE, MARD, IPSARD, iSEE)

State Forest Enterprises reforms Private Public Partnership (forestation, cacao,

rubber)