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A CAMBODIAN GUIDE TO DEFENDING LAND AND HOUSING RIGHTS Volume I Rights, Laws and Strategies for Cambodian Communities Facing Forced Displacement

Part II Your Rights Under Cambodian Law Facilitatorsâ€™ Edition

Copyright 2009 by Bridges Across Borders Southeast Asia, Centre on Housing Rights and Evictions, International Accountability Project. All rights reserved. A Cambodian Guide to Defending Land and Housing Rights Part II: Your Rights Under Cambodian Law â€“ Facilitatorsâ€™ Manual First edition: October 2009 ISBN: 978-92-95004-70-2 We encourage others to copy, reproduce or adapt to meet local needs any or all parts of this book, provided that the parts reproduced are attributed to the original publication and are distributed not-for-profit. Any organization or person who wishes to copy, reproduce, or adapt any or all parts of this book for commercial purposes must obtain permission from the publishers. Before beginning any translation or adaptation of this book or its contents, please contact the publishers for suggestions, for updates on the information it contains, and to avoid duplication of efforts. Please send the publishers a copy of any materials in which text from this book has been used. Bridges Across Borders Southeast Asia #144-H Street 143 Boeung Keng Kang III, Khan Chamcarmon Phnom Penh. Cambodia Email: office@babsea.org Web: www.babsea.org Centre on Housing Rights and Evictions 83 rue de Montbrillant 1202 Geneva, Switzerland Email: cohre@cohre.org Web: www.cohre.org International Accountability Project 221 Pine Street, 5th Floor San Francisco, CA 94104, USA Email: iap@accountabilityproject.org Web:www.accountabilityproject.org Financial support provided by:

FOREWORD Forced evictions and displacement of people and communities are on the rise around the world. Many contemporary cases of forced evictions constitute a gross violation of human rights and indicate a systematic disregard of recognized human rights standards on the part of States. Forced evictions and displacement occur in countries worldwide, including both democratic and authoritarian states. Many are so-called development-based evictions, which include evictions often planned or conducted with the justification or under the pretext of serving the “public good.” These evictions may be linked to slum-clearance, large-scale infrastructure or other development projects, and land-acquisition measures associated with urban renewal, city beautification, large-scale acquisition of forest and agricultural land for food and bio-fuels production or other land-use programmes. Evictions are also on the rise due to the reluctance of States to control speculation in housing and property. Above all, the impact on those affected can often be characterized as a human tragedy. In the wake of forced evictions, people are often left homeless and destitute, without means to earn a livelihood and, in practice, with no effective access to legal or other remedies. As a general rule, forced evictions affect the poorest, the socially and economically most vulnerable and marginalized sectors of society. Wherever forced evictions take place, discrimination seems to play a critical role. Minorities, including indigenous people, are often more likely to be evicted. Forced evictions intensify inequality and social conflict, contributing to segregation and the creation of “apartheid cities and villages.” Most of these “development-based” evictions have one or several common features that contravene recognized human rights standards. Lack of prior notice, inadequate or no consultation, absence of information-sharing, no possibility of participation in the decision-making process for those affected, lack of housing alternatives and the use of excessive force to carry out evictions are disturbing trends. Women suffer particularly as a result of forced evictions and as a consequence not just from loss of home, but also livelihoods, relationships and support systems they were used to, breakdown of kinship ties, physical and psychological trauma and even increased morbidity and mortality. Of serious consequence is also the fact that evictions increase the vulnerability of women to further acts of violence. Faced with such a disturbing scenario it is clear that interventions at all levels are necessary to create a world where displacement is minimized. These interventions need to adopt an uncompromising human rights approach that insists on the implementation of internationally recognized human rights such as the right to adequate housing, food, health and water. Alongside the protection of these human rights we also need to insist PART II YOUR RIGHTS UNDER CAMBODIAN LAW

on the protection of people’s rights to security of the home and person, to participation, freedom of expression and freedom from inhuman and degrading treatment. This guide forms one such invaluable tool to counter forced evictions. This resource is a first of its kind in that the curriculum has been designed especially for and with grassroots community organizers and activists – for them to share with communities at risk of eviction. This resource is an important step in taking the human rights that we struggle for at the international level and bringing these rights and information to the communities who need it most. The Guide is a valuable tool of human rights education and learning. When communities confronted with evictions understand their human rights, they can devise ways themselves to challenge the violation of their rights. The Guide creates – in a step by step manner – the space that is necessary for the empowering process that can lead to communities claiming their rights. In the global struggle underway against forced evictions, I welcome this Guide and hope that it will be used widely across Cambodia. I also welcome the Guide as a reaffirmation of the powerful role that human rights like the right to adequate housing can play in restoring dignity to those whose lives and homes are threatened by the insecurity generated by impending evictions. If the struggle against evictions is realized through the strategies created by people themselves, as the Guide so eloquently strives for, then that is the best affirmation of the potential of the dignity of the individual and the collective identity of a community. The progress made by the adoption of this Guide at local levels will be watched closely across the world. I hope that such efforts can be taken up by the thousands of communities facing the threat of evictions across the world.

Miloon Kothari Special Rapportuer to the United Nations on the Right to Adequate Housing, 2000-2008 New Delhi, 31 September 2009

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ACKNOWLEDGEMENTS The Cambodian Guide to Defending Land and Housing Rights is the result of collaboration between Bridges Across Borders Southeast Asia (BABSEA), Centre on Housing Rights and Evictions (COHRE), and the International Accountability Project (IAP). The project has received financial support towards production costs from the partners listed above as well as generous support from American Jewish World Service (AJWS), Blue Moon Fund, British Embassy in Cambodia, McKnight Foundation, Norwegian Peopleâ€™s Aid (NPA), Oxfam Australia, and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR). To each of our funding partners, we are deeply thankful for their belief in the Guide initiative from the start, and for enabling it to become a reality. GENERAL EDITORS Natalie Bugalski, Legal Officer, COHRE Mark Grimsditch, Legal Adviser, BABSEA Joanna Levitt, Co-Director, IAP David Pred, Director, BABSEA Sao Sotheary, CELA Program Manager, BABSEA The publication was authored by staff and consultants of BABSEA, COHRE, and IAP. AUTHORS

FIELD-TESTING AND REVIEW TEAM

Natalie Bugalski Michael Burstein Mark Grimsditch Ji-Sook Lee Joanna Levitt David Pred

Bun Makara Mark Grimsditch Alice Normand Sor Nyphana Sao Sotheary Sok Sotheara Eang Vuthy

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III

Illustrations for this publication were provided by Our Books ART COORDINATION TEAM

ART TEAM

John Weeks, Managing Editor Sim Sisavuthara, Senior Coordinator

Moeu Diyadaravuth Tek Tevinn Srey Ratanak Chan Ny Sin Yang Pirom Phal Phourisith Sao Channa (graphic assistance)

COVER DESIGN: Opus Cambodia, with contributions by Mathieu Pellerin.

We would also like to acknowledge the following individuals, who contributed, reviewed and provided important guidance and suggestions on the overall approach, content, activities and methodology of the guide: Jessica Bernhart, Katherine Bodde, Chan Vichet, Aviva Imhof, Ken Fernandes, Daniel King, Miloon Kothari, Koun Linna, Bruce Lasky, Xinlin Li, David McQuoid-Mason, Dan Nicholson, Alice Normand, Nov Piseth, Michael Otto, Tracy Perkins, Rod Sanjabi, Seng Vitou, Tim Shaw, Sek Sokha, Sek Sophorn and Som Sothanin. We would also like to thank participants from the initial Training of Trainers conducted in 2008 for their constructive feedback and support. Finally, this guide could not have been written without the thoughtful feedback from dozens of Cambodian land rights activists and community network leaders who helped develop and improve the guide at every step of the way. Our special thanks go out to BABSEAâ€™s CELA team, which has organized field-testing and feedback sessions for the last two years to ensure that community experiences, recommendations and ideas were incorporated into the guideâ€™s pages.

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CONTENTS FOREWORD ............................................................................................................................................................. I ACKNOWLEDGEMENTS ..................................................................................................................................... III INTRODUCTION .................................................................................................................................................VII CLASSIFICATION OF LAND ...................................................................................................................................1 1. THE DIFFERENT CLASSIFICATIONS OF LAND IN CAMBODIA ..............................................................1 2. STATE PUBLIC PROPERTY ........................................................................................................................2 3. PRIVATE PROPERTY ..................................................................................................................................8 4. COLLECTIVE PROPERTY ..........................................................................................................................8 5. STATE PRIVATE PROPERTY ....................................................................................................................10 DIFFICULT TERMS ...................................................................................................................................16 HANDOUT 1 – LESSON 2.........................................................................................................................17 HANDOUT 2 – LESSON 2 .......................................................................................................................21 HANDOUT 3 – LESSON 2 .......................................................................................................................22 LANDOWNER RIGHTS.........................................................................................................................................25 1. WHAT RIGHTS DO LANDOWNERS HAVE? ............................................................................................25 DIFFICULT TERMS ..................................................................................................................................31 POSSESSION RIGHTS ............................................................................................................................................33 1. WHAT IS POSSESSION?............................................................................................................................33 2. POSSESSION MUST HAVE STARTED BEFORE THE LAND LAW WAS PASSED IN AUGUST 2001.......36 3. FIVE CONDITIONS OF LEGAL POSSESSION ..........................................................................................42 4. SOME TYPES OF LAND CANNOT BE LEGALLY POSSESSED .................................................................49 5. POSSESSION AND THE RIGHT TO ADEQUATE HOUSING ...................................................................50 DIFFICULT TERMS ..................................................................................................................................60 HANDOUT 1 – LESSON 1.........................................................................................................................62 HANDOUT 2 – LESSON 3 .......................................................................................................................64 HANDOUT 3 – LESSON 3 .......................................................................................................................65 INDIGENOUS COMMUNITY LAND RIGHTS......................................................................................................67 1. WHAT IS THE VALUE OF YOUR LAND?.................................................................................................67 2. INDIGENOUS COMMUNITY LAND RIGHTS ARE PROTECTED BY THE LAND LAW...........................72 3. INDIGENOUS COMMUNITY LAND RIGHTS ...........................................................................................80 4. WHAT IS THE IMPACT OF SELLING COMMUNITY LAND? ...................................................................85 5. INDIGENOUS SOLIDARITY AND THE INTERNATIONAL INDIGENOUS MOVEMENT .......................93 DIFFICULT TERMS ..................................................................................................................................99 HANDOUT 1 – LESSON 1 .....................................................................................................................100 EVICTIONS AND COMPENSATION UNDER CAMBODIAN LAW ....................................................... 101 1. WHAT IS COMPENSATION? ..................................................................................................................101 2. WHEN ARE YOU OWED COMPENSATION?.........................................................................................106 3. HOW MUCH COMPENSATION SHOULD YOU GET? ............................................................................127 DIFFICULT TERMS .................................................................................................................................133 HANDOUT 1 – LESSON 2 .....................................................................................................................134 HANDOUT 2 – LESSON 3 .....................................................................................................................135 HANDOUT 3 – LESSON 3 .....................................................................................................................137 PART II YOUR RIGHTS UNDER CAMBODIAN LAW

HANDOUT 4 - LESSON 3 ......................................................................................................................139 HANDOUT 5 – LESSON 4 .....................................................................................................................140 CONTRACTS FOR LAND SALE...........................................................................................................................141 1. WHAT IS A CONTRACT?........................................................................................................................141 2. WHAT MAKES A CONTRACT INVALID?...............................................................................................143 3. WHAT HAPPENS IF A CONTRACT IS INVALID?...................................................................................148 DIFFICULT TERMS .................................................................................................................................156 HANDOUT 1 – LESSON 1 .....................................................................................................................157 HANDOUT 2 – LESSON 1.......................................................................................................................158 HANDOUT 3 – LESSON 1 .....................................................................................................................159 GLOSSARY ............................................................................................................................................................161

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INTRODUCTION Around the world, millions of people have been displaced from their homes, farms and forests to make way for development projects such as dams, plantations, mines and new buildings. Sometimes the projects are for the benefit of the country, but often the main benefits go to the powerful individuals and companies that take the land. Frequently, the people living on and using the land are not given an opportunity to participate in the decisions about whether the development takes place and how they will be affected. Instead, intimidation and violence are often used to force people from their homes and land. People may be left homeless or landless and without access to livelihoods, education and healthcare. When forced displacement occurs, the rights of affected people are not respected. People around the world are joining together to resist the injustices of forced displacement. We are a part of this growing movement of people and organizations that are working to defend the rights of those facing forced displacement. We are working to make governments and companies listen to the voices of the people. We believe that everyone should benefit from and make decisions about development, and that development should not make people worse off or destroy their way of life. The Cambodian Guide to Defending Land and Housing Rights is designed to be a useful resource for people who are facing displacement as a result of development. It can help people learn about the risks and dangers of displacement, as well as their rights, and the strategies that they can use to protect those rights. It contains information on many different topics related to forced displacement. It also includes activities that help people understand the information, take part in discussions, and learn important skills, even if they cannot read or write. This way, everyone can participate in planning what actions they will take to defend their rights and those of their neighbors. We hope that the information, strategies and stories in this Guide will help you and your community in your struggle. We have written this Guide with a spirit of solidarity and hope. We believe that communities and peoplesâ€™ movements are a powerful force for making change in our world. We sincerely hope this Guide will help strengthen a truly global movement to stop the injustice of forced displacement, and to defend your communities, lands and ways of life.

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VII

CLASSIFICATION OF LAND

CLASSIFICATION OF LAND OUTCOMES After completion of this module, Participants will: 1. Know and be able to identify the different classifications of land in Cambodia. 2. Understand why it is important to know the different classifications of land.

1. THE DIFFERENT CLASSIFICATIONS OF LAND IN CAMBODIA During the Democratic Kampuchea regime, the Khmer Rouge abolished ownership of land and destroyed all existing official records. At this time, all the land belonged to the State and there were no private owners. After the Khmer Rouge fell, and for the next ten years, the right to own land was still not recognized and all land was owned by the State. This began to change towards the end of the 1980s, and in 1992, a Land Law was passed which recognized that all Cambodians have the right to own and transfer land. A new Land Law was passed in 2001. Under this law, land in Cambodia is divided into three main classifications: • • •

State property Private property Collective property

State property is divided into State public and State private property. Collective property is divided into monastery and indigenous community property.

State property

State public property

State private property

Private property

Collective property

Monastery property

Indigenous community property

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The Land Law uses the term immovable property when talking about land. Immovable property is any property that cannot be moved, including land. Anything that is so attached to the land that it cannot be removed without being destroyed is also considered immovable property. For example, a house or a large tree cannot be removed without being destroyed, so both are examples of immovable property. In this section, we will refer to “immovable property” simply as “property.” WHY IS IT IMPORTANT TO KNOW THE DIFFERENT LAND CLASSIFICATIONS? It is very important to understand the different classifications of land because the classification of a piece of land will determine who can own the land and what purposes the land may be used for. For example, some types of land cannot be owned by private individuals and can only be owned by the State. Unfortunately, it is often difficult to find out the classification of a piece of land. The government has the responsibility to draw up maps of the whole country and classify the different types of land,1 this has still not been done in most places. It is also very difficult to access information about those areas that have been classified.

2. STATE PUBLIC PROPERTY State public property is property that belongs to the State but is available for the public to use, or property that provides a service to the public.2 The following table describes the types of property which are State public: Type of property

1 2

Examples

Property of natural origin

Forests, riverbanks, seashores, lakes

Property created for general or public use, or to provide a public service

Roads, public gardens, public parks, railways, airports, public schools, public hospitals, administrative buildings

Archeological, cultural, historical estates

Angkor Wat, historical sites

Sub-decree #118 on State Land Management 2005. Land Law 2001, Article 15.

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CLASSIFICATION OF LAND

State public property â€“ a riverbank State public property is for public use or benefit and the only possible owner is the State. This means that it cannot be bought or sold by people or companies.3 State public property can be leased, but the lease cannot be longer than 15 years, and the person leasing the land cannot do anything that damages the land or changes the public function of that land.4

State public property â€“ A public high school

Land Law 2001, Article 16. Sub-decree on Rules and Procedures on Reclassifications of State Public Properties and Public Entities 2006, Article 16 & Article 18.

3 4

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If a piece of State public property is no longer used for the public interest, it can become State private property (this type of land will be explained later). For example, if a public hospital is moved to a new building and the old building is left empty, it can become State private property. This is because the building is no longer providing a service to the public.5 LAKES, RIVERS, ROADSIDES AND RAILWAYS The definition and examples used in the Land Law to explain State public property are not totally clear. For example, roadsides are State public property, but the law does not define clearly what a “roadside” is or how wide a roadside should be. The same problem exists for river banks and the sides of railways. It is clear however that, although the body of a lake is State public property, the banks of a lake are not included in the list of State public property written in Article 15 of the Land Law.

State public property – A Forest

Land Law 2001, Article 16.

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CLASSIFICATION OF LAND

LESSON 1: STATE PUBLIC PROPERTY AIM: Participants will discuss the concept of classification of land and look in more detail at what kind of land can be State public property. They will understand that the classification of land has an impact on whether it can be owned, and what it can be used for. MATERIALS: Whiteboard or flipchart, markers. METHOD(S) USED: Small group discussions, drawing, group discussion. Procedure

Time Frame (in minutes)

Introduce the information in Sections 1 & 2

Explain the exercise and divide Participants into groups of four

Small group discussions and drawings

Debrief

Total:

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INSTRUCTIONS TO FACILITATOR 1.

INTRODUCE THE INFORMATION IN SECTIONS 1 AND 2:

Sections 1 and 2 - It is important that Participants understand: • • • •

That there are three main classifications of land in Cambodia. Why it is important to know the different classifications of land. What the definition of State public property is. That State public property cannot be privately owned and it cannot be sold. •

It may be useful to the Participants if you draw the classification diagram from Section 1 on the board or flipchart.

•

Make clear at this stage that we will only be discussing State public property in this exercise. The other classifications will be discussed next.

EXPLAIN THE EXERCISE AND DIVIDE PARTICIPANTS INTO GROUPS OF FOUR: •

First explain that the Participants will work in groups of four and think about what kinds of land can be classified as State public property. For each example they should draw a picture on a piece of flipchart paper.

•

Tell them to think back to the definition given during the lesson:

“State public property is property that belongs to the State but is available for the public to use, or property that provides a service to the public.” 3.

SMALL GROUP DISCUSSIONS AND DRAWINGS: •

Give each group a large piece of paper and colored markers. Tell the groups that they have 15 minutes to think of and draw as many examples of State public property as possible.

Suggested Answers: State public property is: •

Property of natural origin: for example forests, riverbanks, seashores, and lakes.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

Property created for general or public use, or to provide a public service: for example roads, public gardens, public parks, railways, airports, public schools, administrative buildings, and public hospitals.

•

Archeological, cultural, historical estates: for example Angkor Wat and other historical sites.

4. DEBRIEF: •

Bring the groups back together and ask each group to present their examples. If any of the answers are incorrect, you should correct them.

•

If you can think of any examples that the groups missed, you can add them at the end.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

CLASSIFICATION OF LAND

•

3. PRIVATE PROPERTY Private property is property which is owned or possessed by a private individual or company.6 Private owners and possessors can enter, stay, use, transfer or exclude people from their land as they wish, as long as they do not break any laws.7

Cross Reference Landowner & Possession Rights

It is sometimes possible for private property to become State property. For Cross Reference example, the State may take peopleâ€™s private property if it is in the public Evictions and Your Rights interest and there are no other possible alternatives to taking the private & land. When the State does take land in the public interest, the State must Compensation follow the law, and the owners must be given fair compensation before the State takes the land.8 The government must also ensure that anyone who is evicted has access to alternative adequate housing and land.9 POSSESSED LAND Some private land is legally possessed but the owners do not have title. This land is still private property. Legal possession of land is not as strong as ownership, but it gives the possessor rights to live on the land, transfer the land to others and stop people from entering. Legal possessors have the right to transfer their possession into legal ownership and receive title. There are several rules that must be followed for possession to be legal. These are discussed in the section on possession rights.

4. COLLECTIVE PROPERTY Collective property is owned by a community, not just one person.10 There are two types of collective property: monastery and indigenous community.

4.1. MONASTERY PROPERTY Monastery property is property within the lands of Buddhist monasteries. It cannot be sold or privately owned or possessed by anyone outside the pagoda. The management of monastery property is the responsibility of the pagoda committee.11

Land Law 2001, Article 10. Land Law 2001, Article 85. 8 The Constitution of the Kingdom of Cambodia 1993, Article 44; and Land Law 2001, Article 5. 9 Committee on Economic, Social and Cultural Rights, 1997, General Comment 7, paragraph 16. 10 Land Law 2001, Article 10. 11 Land Law 2001, Article 21. 6 7

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CLASSIFICATION OF LAND

Monastery property

4.1. INDIGENOUS COMMUNITY PROPERTY The Land Law 2001 says that an indigenous community is a group of people who live in Cambodia, whose members are “ethnically, socially, culturally and economically tied together, and who practice a traditional lifestyle.”12 Indigenous community property is property where indigenous communities have made their homes and where they use traditional methods to farm.13

Indigenous community property 12 13

Land Law 2001, Article 23. Land Law 2001, Article 25. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS PEOPLE AND CLASSIFICATION In the future, indigenous communities will be able to collectively own their land through collective title.14 A collective title is a public document given by the State that recognizes an indigenous community’s rights over the land described in the title. Because there is no system for granting a collective title yet, currently no indigenous community officially “owns” their land. Sometimes, the government says that the lands of indigenous people belong to the State because they are not registered. However, until collective titles are available, Article 23 of the Land Law protects indigenous communities’ right to manage and use their land according to their traditional customs. Lands where indigenous communities have made their homes and where they use traditional methods to farm or raise their animals are eligible for collective title.

5. STATE PRIVATE PROPERTY State private property is any property belonging to the State that is not State public property.15 Although this land is the property of the State, it is not made available for the public to use and does not offer a public service. Any property which is not State public, private or collective is State private property. State private property can be sold by the State, but this must follow the procedure set out in the law.

14 15

Land Law 2001, Article 26. Land Law 2001, Article 14.

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CLASSIFICATION OF LAND

LESSON 2: THE FIVE CLASSIFICATIONS OF LAND AIM: Participants will be able to identify the different classifications of land and understand why they are important. After completing this chapter, they will be able to recognize what type of land they live on. MATERIALS: Whiteboard or flipchart, markers, copies of Handouts 1, 2 & 3. METHOD(S) USED: Quiz, group work, large group discussion Procedure

Time Frame (in minutes)

Introduce the information in Sections 3, 4 & 5

Explain the exercise and divide the Participants into groups

Small group work

Large group discussion

Debrief

Total:

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INSTRUCTIONS TO FACILITATOR 1.

INTRODUCE THE INFORMATION IN SECTIONS 3, 4 & 5:

Sections 3, 4 & 5 - It is important that Participants understand: • • •

The definitions of the other classifications of land in Cambodia: private, monastery, indigenous community and State private. Why it is important to know the different classifications of land. The difference between State public and State private land. •

You may use the pictures of the different types of land as examples, see Handout 1.

•

Make sure to explain the classifications clearly and use the chart from the previous exercise to explain each new classification.

DIVIDE THE PARTICIPANTS INTO GROUPS: •

Divide the Participants into groups of four or five.

•

Give Participants Handout 2 and explain that the groups should decide how each example of property should be classified.

•

Participant must decide how these places should be classified: 1.

The local public high school

The monks’ classroom located inside the grounds of the local pagoda

The local main road

The public hospital

An empty field between two villages that nobody uses and nobody privately owns or possesses

Forest

A small village in the hills where an indigenous community has lived for many years

A house and land in town bought by a newly married couple using a legal contract. The couple recently received a title to their land.

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Angkor Wat

10. A house where a family lives, built ten meters from a lake. The land is not registered to anyone, but the family has lived there since 1985. 3.

SMALL GROUP WORK: •

Participants should decide how each example of property should be classified and give reasons for their answer.

•

If Participants cannot read, the Facilitator should read out the types of property from the handout.

LARGE GROUP DISCUSSION: •

Write the five classifications of land on the board/chart:

State public

State private

Private

Indigenous community

Monastery

•

Instead of asking each group to present all their answers, ask one volunteer Participant to come to the front of the class and write the first example under the correct classification. Invite a new Participant to write the answer for each example.

•

After each example, ask the Participant for their reasons and ask the others if they agree or not. You should confirm what the correct answer is.

Suggested Answers: 1.

State public property – the local public high school is used to provide a public service.

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CLASSIFICATION OF LAND

Monastery property – the school is inside the grounds of the pagoda and it is not open to the public, only monks.

State public property – the road is used to provide a public service.

State public property – the public hospital is used to provide a public service.

State private property – the empty field is a piece of property belonging to the State but it has no public use.

State public property – the forest is property of natural origin.

Indigenous community property – it has been occupied by an indigenous community for a long time. (Technically this may still be State land because it is still not possible for indigenous people to register their land. However, Article 23 of the Land Law gives indigenous communities the right to continue to live on and manage the land until they can register).

Private property – as long as the couple bought the land using a legal contract and followed the other necessary legal requirements, the house is their private property.

State public property – Angkor Wat is an archeological, cultural, and historical estate.

10. Private property – the land is not State public (lakes are, but the areas around them are not). The land is not registered, but the family has lived there since 1985, and may therefore be legal possessors. If they are legal possessor, the land is private property. This will be discussed in the possession rights module. 5. DEBRIEF: •

To debrief the lesson, play a short odd-one-out game. Show the Participants Handout 3. Ask them which of the pictures does not belong in the group. Suggested Answer: The answer is picture 3, the river. The river is State public property. The other three pictures are all private property if they legally owned or possessed, or if not they are all State private property.

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Make up some more examples if there is time and call them out to the class, for example:

A forest A house on a riverbank A road A house 20 meters from a lake

Suggested Answer: The house near the lake does not belong in this group, as the other three are all State public property. The bank of a lake is either private property if it is owned or possessed, and if not, it is State private.

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CLASSIFICATION OF LAND

•

DIFFICULT TERMS: 1.

Classification (of land): In Cambodia all land belongs to one of these groups: private property, State public property, State private property, indigenous community property, and monastery property. Each one of these is a separate type or classification of land. The classification of a piece of land will determine who can own it and what purposes it may be used for.

Collective property: If land is collectively owned, it belongs to a group of people instead of one person. For example, indigenous community property belongs to all the members of the indigenous community living there.

Collective title: A public document given by the State that declares an indigenous community has legal ownership over the land described in that title.

Immovable property: Property which cannot be moved. For example, land and anything that is attached to the land and cannot be moved without destroying it, for example a house or large tree.

Indigenous community: A group of people in Cambodia who share ethnic, social, cultural and economic unity. They practice a traditional lifestyle and have distinct customs and practices.

Indigenous community property: Land on which an indigenous community lives or carries out traditional agriculture.

Monastery property: Land and buildings within the grounds of Buddhist pagodas.

Private property: Property that is owned or legally possessed by a private individual or company.

State public property: Property that belongs to the State but is available for the public to use or provides a service to the public. This may be property of natural origin (e.g. lakes and forests), property for public use or service (e.g. railways, roads and public parks), and archeological and historical sites.

10. State private property: Property that belongs to the State but is not State public property, because it is not available for the public to use or does not provide a service to the public. If State public property loses its public interest use, it can be changed to State private property.

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HANDOUT 1 - LESSON 2

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CLASSIFICATION OF LAND

HANDOUT 1 - LESSON 2 (CONTINUED) PART II YOUR RIGHTS UNDER CAMBODIAN LAW

HANDOUT 1 - LESSON 2 (CONTINUED)

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CLASSIFICATION OF LAND

HANDOUT 1 - LESSON 2 (CONTINUED) PART II YOUR RIGHTS UNDER CAMBODIAN LAW

CLASSIFICATION OF LAND

HANDOUT 2 â€“ LESSON 2 1.

The local public high school

The monksâ€™ classroom located inside the grounds of the local pagoda

The local main road

The public hospital

An empty field between two villages that nobody uses and nobody privately owns or possesses

Forest

A small village in the hills where an indigenous community has lived for many years

A house and land in town bought by a newly married couple using a legal contract. The couple recently received a title to their land.

Angkor Wat

10. A house where a family lives, built ten meters from a lake. The land is

not registered to anyone, but the family has lived there since 1985.

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HANDOUT 3 - LESSON 2 DEBRIEF

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

CLASSIFICATION OF LAND

HANDOUT 3 - LESSON 2 DEBRIEF (CONTINUED)

LANDOWNER RIGHTS

LANDOWNER RIGHTS OUTCOMES After completion of this module, Participants will: 1. 2.

Know and understand the basic rights of landowners. Understand why these rights are important.

1. WHAT RIGHTS DO LANDOWNERS HAVE? Under the Cambodian Constitution, all Cambodians have the right to own property. The Constitution is the highest law in Cambodia and it states that ownership of land must be protected by law.16 The Land Law 2001 is the main law that protects this right.17 The Constitution of the Kingdom of Cambodia Article 44: All persons, individually or collectively, shall have the right to ownership.

16 17

The Constitution of the Kingdom of Cambodia 1993, Article 44. Land Law 2001, Articles 4 & 5. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

Ownership is the strongest right anyone can have over land. It allows the owner to use their land in any way they want, as long as the way the owner uses the land does not break any laws. This includes the rights to: 1. 2. 3.

Use and enjoy the land, for example, plant or build on the land; Stop other people from coming onto or using the land; Transfer the land to others.18

It is important to know that until you register your land, you are not legally the “owner” of that land. When land is registered, it is added to an official list along with the owner’s details. The owner is then given a document called a title. This is proof that he or she is the legal owner of the land. If you do not have title, it does not mean that you have no rights to the land. Many Cambodians do not have title to their land, but still have rights as possessors. Possession rights will be discussed in more detail later.

Cross Reference Protecting Your Rights: Documents

Cross Reference Possession Rights

1.1. RESTRICTIONS ON LANDOWNER RIGHTS Sometimes, the law can restrict owners’ rights. Landowners cannot use their land for an illegal purpose and they cannot use their land in a way that harms others.19 For example, a landowner cannot grow illegal crops on their land.20 Also, any transfer of land must be done by contract and follow the rules set out in the Land Law 2001 and the contract law. INDIGENOUS PEOPLE AND LANDOWNER RIGHTS For hundreds of years, indigenous peoples have traditionally managed thousands of hectares of lands in Cambodia, and under the 2001 Land Law, indigenous communities also have the right to own their traditional lands. However, under the 2001 Land Law, indigenous communities have slightly different land rights to nonindigenous people. The Land Law gives indigenous communities the right to register their collective land.21 Once indigenous land is registered the community will be given collective title. This means that the land will be owned by the whole community, not by individuals.

Land Law 2001, Article 85. Land Law 2001, Article 86. 20 Land Law 2001, Article 256. 21 Land Law 2001, Article 26 18 19

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

Collective land and registration of indigenous land is discussed in more detail in the module Indigenous Land Rights.

Land Law 2001, Article 23 PART II YOUR RIGHTS UNDER CAMBODIAN LAW

LANDOWNER RIGHTS

The land rights associated with the communityâ€™s lands are jointly shared by all the community members. How the community decides to use and enjoy the land, to exclude others, and to transfer their land should be governed by their traditional customs and community laws.22

LESSON 1: BASIC LANDOWNER RIGHTS AIM: Participants will know the basic rights landowners have over their land and which laws protect them. They will then be able to think about how people use these rights every day. MATERIALS: Whiteboard or flipchart, markers, pencils. METHOD(S) USED: Group discussion, drawing and presentations. Procedure

Time Frame (in minutes)

Introduce the information in Section 1

Explain the exercise and divide into groups

Small group discussion and drawing

Presentations and large group discussion

Debrief

Total:

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

LANDOWNER RIGHTS

INSTRUCTIONS TO FACILITATOR INTRODUCE THE INFORMATION IN SECTION 1:

Section 1 - It is important that Participants understand: • • • •

The Constitution guarantees the right to ownership. This includes the right to ownership of land. The Land Law 2001 gives Landowners the right to use their land, stop others coming on to it, and to transfer it. The Land Law 2001 also gives indigenous people the right to own their land. •

EXPLAIN THE EXERCISE AND DIVIDE INTO SMALL GROUPS: •

Explain that Participants will divide into three groups. Each group will have 15 minutes to discuss one landowner right and how it can be used and then draw a picture of this.

•

If there are too many Participants, divide them into six groups and each right can be discussed by two different groups. Keep in mind that this will take more time for group presentations.

•

Give each group a flipchart paper and markers.

•

You can draw an example picture on the board/chart if the Participants do not understand the exercise.

SMALL GROUP DISCUSSIONS AND DRAWINGS: •

When you explain the basic rights, you should write them on the board. Make sure not to give too many examples so that the class will be able to come up with examples during the activity.

Walk around and listen to the discussions and help any Participants who are finding the exercise difficult.

PRESENTATIONS AND LARGE GROUP DISCUSSION: •

When the Participants have finished, call on each group to stand up and show the other Participants their pictures.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

•

When Participants present their examples, they should show the rest of the group their pictures and the class should try to guess what right the picture shows. The Participants must make sure to explain why it is important that landowners have these rights.

•

If there are six groups, the groups that have worked on the same right should present their drawings one after the other. Participants do not need to repeat things that have already been said by another group.

Suggested Answers: 1.

To use and enjoy the land – Examples include: moving onto the land to live, building a house or a shelter for animals, and growing crops. This right is important because landowners must be able to use their land the way they want or need, for example to make a living from their land or make their land more valuable. But owners cannot use their land in a way that breaks the law.

To stop other people from coming onto or using the land – Examples include: building a fence to keep others out, telling your neighbor that he/she cannot plant crops on land that you were leaving empty, and stopping people from building anything on your land. This right is important because it gives owners security from other people taking their land or coming onto the land and causing damage. It is up to owners alone to choose who they want to come onto their land. It also gives landowners privacy.

To transfer land to others – Examples include: a landowner selling land to someone, giving land to someone as a gift, exchanging land with someone, and leaving land to someone when he/she dies. For some people it is important to be allowed to transfer their land because it gives them an opportunity to make money and improve the quality of their life. It is also important for some people to be able to ensure that their sons and daughters or other family or community members can inherit their land.

DEBRIEF: •

You should finish the exercise by asking for three volunteers to briefly summarize one right each.

•

Then ask the whole group if anybody can think of more examples of each right being used. Ask the Participants to try to think of personal examples of how they use these rights.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

Collective title: An official document given by the government that states that an indigenous community has ownership over a piece of land. Collective title gives ownership rights to the whole community, not an individual. This means that individuals cannot sell indigenous land.

Ownership: Ownership gives a person full rights to a piece of property. Ownership is the strongest right anyone can have over land. It allows the owner to use their land in any way they want, as long as the way they use the land does not break any laws.

Register: To add something to an official list. When land is registered the person it is registered to is given a document of ownership (or title) and this can only be questioned in court.

Title: An official document given by the government that states that a person legally owns a piece of land.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

LANDOWNER RIGHTS

DIFFICULT TERMS:

POSSESSION RIGHTS

POSSESSION RIGHTS OUTCOMES After completion of this module, Participants will: 1. 2. 3. 4.

Know what the Land Law 2001 says about possession. Know and understand what the rights of a possessor are. Understand and identify the conditions of legal possession. Understand which types of land can be legally possessed.

1. WHAT IS POSSESSION? During the Khmer Rouge regime, private ownership of land was not allowed. All land became the property of the State and all records of ownership form before 1975 were destroyed.

This meant that when the regime ended, no one knew who owned the different plots of land in Cambodia. Many people found areas to live and build homes and have stayed there since the end of the war.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

The 1992 Land Law aimed to start a new system so people could eventually own land privately. Because all the official records of who owned which plots of land were destroyed, the 1992 Land Law introduced legal possession and this was updated by the Land Law 2001. People who settled on land at any time before August 30, 2001 (when the Land Law 2001 was passed) and meet the five conditions of legal possession contained in the Land Law have a legal right to stay and live on the land they are occupying.23 These people are legal possessors and they have possession rights. It is important to know that not all possession is legal. To be legal, it must follow the rules set out in the Land Law (see next section). WHAT IF YOU DO NOT MEET THE CONDITIONS OF LEGAL POSSESSION? Some families do not meet the conditions of legal possession. These families still have a right to adequate housing. This means that if the government ever tries to remove them from their land, it must respect its duties before, during and after the eviction and make sure that the evicted families are able live in an adequate home that enables them to meet their basic needs. These rights and government duties come from international human rights law, which Cambodia has signed and agreed to follow.

1.1. THE RIGHTS OF POSSESSORS Legal possession is different than ownership. Owners are people who live on land that is registered and have legal title to that land. A possessor is someone who legally lives on, uses or occupies a piece of land but does not officially own the land by having title. Renters and people with other specific rights to use and live on the land are not possessors. If possession is legal and follows the rules set out in the Land Law (discussed in the next section), the possessor has many of the same rights as a person who owns land. Land Law 2001 Article 39: While waiting for the possession to be transformed into full ownership, possession in compliance with this law constitutes a right in rem over the immovable property. Such property may be the subject of exchange, transfers of rights and transactions.

Land Law 2001, Article 39

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

Land Law 2001 Article 30: Any person who enjoyed peaceful, uncontested possession of immovable property that can lawfully be privately possessed, has the right to request a definitive title of ownership.

1.2. WHY IS IT IMPORTANT TO TRY TO REGISTER YOUR LAND AND GET TITLE? The big difference between the rights of a possessor and the rights of an Cross Reference individual owner is that owners can better protect their land. This is because Protecting Your Rights: owners have registered their land and have received a land title, so there is an Documents official record proving that they legally own the land. A title is an official document from the government saying that the person with the name on the title owns the piece of land described in the title.25 When you register land, the government records you as the owner of the land in the Land Register and you receive a land title for your own records. The Land Register is the official list of owners of plots of land in Cambodia.26 Having title means two very important things: â€˘

First, it means that the person with the title has an official document that proves he or she owns the land; and

â€˘

Second, it means the owner has a much stronger right to compensation if the government ever has to take his or her land for a public service (like to build a road).

Cross Reference Compensation and Evictions & Your Rights

Land Law 2001, Article 30. Land Law 2001, Article 242. 26 Land Law 2001, Article 238. 24 25

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

This means that possessors have the right to use and enjoy the land, stop other people from entering or using the land, or to transfer the land to others. The possessor also has the right to apply for title to turn their possession into ownership.24

2. POSSESSION MUST HAVE STARTED BEFORE THE LAND LAW WAS PASSED IN AUGUST 2001 For possession to be legal, there are several conditions that must be met. The first condition is that the possession of the land must have started before the Land Law was passed on August 30, 2001.27

In this example, a husband and wife moved onto a piece of land before the Land Law 2001 was passed. They built a home there and now have a small business. If they meet the other conditions discussed later, they are legal possessors. The person who is applying for ownership of the land does not have to be the original possessor.28 For example, if a person bought a piece of land from someone else in 2003, he or she has possession rights as long as the person he or she bought the land from possessed the land before the Land Law was passed in August 2001. The person applying for ownership must be able to prove this and show evidence of the sale or transfer (for example, a sale contract). If they can do this, they are legal possessors, and can request that their possession be changed into ownership by applying for a land title.

27 28

Land Law 2001, Articles 30. Land Law 2001, Article 30.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

In this example, a husband and wife moved on to a piece of land and built a home before the Land Law 2001 was passed. Later, they sold the land and house. If the buyer meets the conditions discussed below, even if they bought the land after the Land Law was passed, they are legal possessors.

In this example, the husband and wife moved onto the land after the Land Law 2001 was passed. Because of this, their possession is not legal. There are five more conditions for possession to be legal. They will be discussed in the next section.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

LESSON 1: WHAT IS POSSESSION? AIM: Participants will know what legal possession is under the 2001 Land Law. They will understand that to be legal, possession must have started before the Land Law was passed, and they will be able to apply this to their own situation. MATERIALS: Flipchart, markers, copies of Handout 1. METHOD(S) USED: Group discussions, presentations, pictures. Procedure

Time Frame (in minutes)

Introduce the information in Sections 1 & 2

Explain the exercise and divide Participants into groups

Small group discussions

Group presentations and discussion

Debrief

Total:

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INTRODUCE THE INFORMATION IN SECTIONS 1 & 2:

Sections 1 & 2 - It is important that Participants understand: • • • •

What the meaning of possession is. That possessors have similar rights to owners, but these rights to the land are not officially recorded so their position is not as strong. That not all possession is legal, and to be legal it must meet several conditions set out in the 2001 Land Law. That the first condition is that the possession must have started before the 2001 Land Law was passed. •

Ask the Participants to raise their hand if they consider themselves to be owners of their land. Then ask one or two of the Participants who raised their hand to explain why they consider themselves owners. You can also ask a few Participants who raised their hands which year they settled on their land.

•

Explain that there are also five other conditions that must be followed for the possession to be legal and these will be discussed in the following lesson.

EXPLAIN THE EXERCISE AND DIVIDE PARTICIPANTS INTO GROUPS: •

Divide Participants into four or five groups. Pass out copies of the three pictures in Handout 1 to each group. Explain that these are timelines of people moving onto and settling on land.

•

Give Participants 10 minutes to discuss in their groups and decide if the possession shown in each picture can be legal, and why.

GROUP DISCUSSIONS: •

Move from one group to another to make sure that all Participants understand the pictures and the condition for legal possession discussed in this lesson.

GROUP PRESENTATIONS AND DISCUSSION: •

Instead of calling every group to come and present answers for all of the pictures, ask a different group to come and explain their answer for each picture. The group should explain if they think the possession is legal or not and give their reasons. Ask the other Participants if they agree or not, and why.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

INSTRUCTIONS TO FACILITATOR

Suggested Answers:

Yes, Boren has the right to apply for title. Boren and his family settled on the land before the 2001 Land Law was passed and have lived there peacefully since. They checked to see if the land belonged to anyone first, so the possession was in good faith and is not on somebody else's private land. Also, the land does not fit the definition of State public, monastery or indigenous land.

No, Davy does not have the right to apply for title. Davy has possessed the land since before the Land Law was passed, it is clear and known to the public, it is peaceful and it is in good faith. However, riverbanks are State public property and it is illegal to occupy them.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

No, Puthy does not have the right to apply for title. His possession is not legal because: a. b.

The land is private property and registered to Leang; and Puthy’s possession of the land was kept secret so it was not unambiguous and known to the public and was not in good faith.

Leang must still respect Puthy’s rights and cannot use violence to force Puthy from his land. 4.

Yes. Theary has possession rights under the Land Law. She has been living there peacefully since before the Land Law was passed, she started living there in good faith, and it is clear and known to people she has been living there. Although the lake itself is State public property, the land around the lake is not State public property, and can be possessed.

5. DEBRIEF: •

To debrief the exercise, first ask for volunteer Participants to summarize all the conditions of legal possession. Make sure that the explanations are brief.

•

Next, hold an open discussion with the class about possession. Discuss the following issue:

•

The Land Law states that it is illegal for people to live on State public property. However, many thousands of people in Cambodia are living on State public property, especially on riverbanks. Do you think the law is fair? What do you think should happen to these people?

Hopefully, during this discussion, the Participants should understand that:

Many people living on State public property have lived there for many years and should only have to move if there is a very good reason. For example, if there are houses along a riverbank and the soil under the houses becomes unstable in the rainy season, this might be a good reason for the families to be relocated. If the government needs to expand a railway line and some houses are too close to the railway for the expansion, this would be an acceptable reason for the families to have to move. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

Under the Land Law she can be legally evicted, but under international human rights law, the government must make sure that she is able to find other adequate housing. If Davy would become homeless and landless after the eviction because she has no other adequate house to live in, the government has a duty to make sure Davy is able to live in another adequate house and has livelihood opportunities.

Âƒ

Even if someone has to move, the State must respect their right to adequate housing as well as its duties before, during and after an eviction.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

LESSON 4: WHAT DOCUMENTS CAN BE USED TO PROVE LEGAL POSSESSION? (OPTIONAL) AIM: Participants will discuss what documents they can collect or make to help prove that their possession is legal. After the training, Participants will know what documentation they need to prove their own possession, and how they can get or make new documentation. MATERIALS: Whiteboard or flipchart, markers. METHOD(S) USED: Small group work, brainstorming, class discussion. Procedure

Time Frame (in minutes)

Explain the exercise and divide Participants into small groups

Small group work

Class discussion

Debrief

Total:

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INSTRUCTIONS TO FACILITATOR 1.

EXPLAIN THE EXERCISE AND DIVIDE PARTICIPANTS INTO SMALL GROUPS: •

Explain to the Participants that in this exercise, they will be divided into small groups and think of documents they can use, gather or make to prove that their possession is legal.

•

This exercise is optional and should not be done if the lesson on “Protecting Your Rights Through Documentation” will be taught later.

SMALL GROUP WORK: •

Move from one group to another to make sure that all Participants understand their task. Encourage them to keep thinking about new ideas for documents. For example, tell them to think about:

Documents they have received while they were living on the land Documents they can make or collect themselves to show they live on the land Official documents they can request from officials

CLASS DISCUSSION: •

After 15 minutes, bring the groups back together and ask the whole class for their ideas. You may ask a volunteer to write the ideas on the board or chart.

•

Instead of asking each group to present their ideas, ask the whole class to share their ideas together. Try to get as many answers as possible from Participants from different groups.

•

When Participants have no more new ideas, you may add more examples from the Suggested Answers below.

Suggested Answers: These documents may help you prove that you meet the conditions of legal possession: • • • •

Dated photographs of the land and any buildings or improvements you made Dated letters sent to your address Birth certificates, living book or family book Village chief’s statistics book

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

• •

Records showing any taxes you paid on the land Copies of any electricity, water, telephone, or other utility bills you paid for the house Documents from the buying or transfer of the land, for example the contract of sale Voter registration forms

In addition, you can also make their own documents to show they have been living on the land, for example: • •

Pictures of your family in front of your house or on your land Signed or thumb printed statements from neighbors, friends and officials saying how long you have lived in your house

Finally, people can also ask for more official documents from government offices, for example: • •

From the Ministry of Commerce if you have registered a small business From the Ministry of Education if you have registered your children to the local school

DEBRIEF: •

Explain to the Participants that they should always try to keep copies of documents like those described above in a safe place.

•

They should never let anyone they do not trust take these documents away from them – if a government official needs to see them, they should take copies, not the original documents.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

• •

DIFFICULT TERMS: 1.

Compensation: An amount of money or something else of value paid to make up for damage or loss caused. In the case of an eviction, compensation can be money, replacement land, new housing or any combination of the three. Compensation can also be given for things such as earnings from jobs and businesses that were lost, or crops or trees that were destroyed or lost because of an eviction from housing or land.

Continuous: Possession must be continuous. This means a possessor cannot leave the land unoccupied or unused for a long period of time and then come back, unless this is part of the natural use of the land.

Evidence: Facts or information that show that something is true or valid.

Good faith: Honest and not trying to deceive others.

Land Register: The official list and description of land plots and owners in Cambodia.

Possession: When someone lives on, uses or occupies a piece of land but does not officially own the land by having title. When someone meets all the criteria in the 20001 Land Law they are legal possessors and have many of the same rights as owners. They also have the right to apply for title. Renters and people with other specific rights to use and live on the land are not possessors.

Title: An official record that states that a person legally owns a piece of land.

Unambiguous: Possession must be clear, including the boundaries of the land.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

HANDOUT 1 - LESSON 1 (PICTURE 1)

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

HANDOUT 1 - LESSON 1 (PICTURE 2) PART II YOUR RIGHTS UNDER CAMBODIAN LAW

HANDOUT 1 - LESSON 1 (PICTURE 3)

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

POSSESSION RIGHTS

HANDOUT 2 â€“ LESSON 3 CASE STUDIES 1.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

The land must not be indigenous property, monastery property, someone else's private property or State public property

The possession must have started before the Land Law was passed in August 2001

The possession must be continuous

The possession must be peaceful

The possession must be in good faith

The possession must be unambiguous

The possession must be known to the public

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS COMMUNITY LAND RIGHTS

HANDOUT 3 â€“ LESSON 3

OUTCOMES After completion of this module, Participants will: 1. Understand the different types of value that different people place on land. 2. Know that the land rights of indigenous communities are protected by the 2001 Land Law. 3. Know what type of land can be registered and used by indigenous communities. 4. Know what the land rights of indigenous people are. 5. Recognize the impact of selling community land to outsiders. 6. Recognize that indigenous people have special rights in international law, and that indigenous community solidarity is important to defend these rights.

1. WHAT IS THE VALUE OF YOUR LAND? Indigenous communities may use their land for many things, including building their homes and farming. They may use forests for food, medicines, spiritual and community activities. For many indigenous people, their land is their life. Daily family life and the traditional ways of their communities are directly connected to the land. Indigenous communities use their land collectively for the benefit of the whole community.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS COMMUNITY LAND RIGHTS

People from outside indigenous communities sometimes want to take or use indigenous communitiesâ€™ land. Many indigenous communities in Cambodia live on land which could be worth a lot of money to people outside the community. Outsiders may want to sell the wood and plants from the forests, use the water from the rivers, explore the ground for precious stones or metals, and use the land for plantations. Outsiders may try to buy the land from indigenous communities, or sometimes just take the land. People from outside the community may want to own the land individually to make private profit. When we talk about the â€œvalueâ€? of land, this can have many different meanings. For many indigenous people their land is not only where they live and farm but it also has spiritual value, and may have been used collectively by that group for many generations. Often, outsiders do not place the same sort of spiritual or communal value on the land. Instead, they may only see its monetary value.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS COMMUNITY LAND RIGHTS

LESSON 1: WHAT IS THE VALUE OF YOUR LAND? AIM: Participants will think about why their land is important to them and what kind of value they place on their land. They will also think about what kind of value outsiders might place on their land. MATERIALS: Whiteboard or flipchart, markers. METHOD(S) USED: Group discussion, drawing and presentations. Procedure

Time Frame (in minutes)

Introduce the information in Section 1

Explain the exercise and divide Participants into groups

Group discussion and drawing

Presentations and class discussion

Debrief

Total:

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INSTRUCTIONS TO FACILITATOR 1.

INTRODUCE THE INFORMATION IN SECTION 1:

Section 1 - It is important that Participants understand: • • • •

That indigenous communities use their land according to traditional customs. Why the different traditional uses of land are important. Why outside groups sometimes want to use or take indigenous land. That “value” of land can mean different things to different people.

EXPLAIN THE EXERCISE AND DIVIDE PARTICIPANTS INTO GROUPS: •

On one half of the paper the Participants should draw a picture of different ways that they use their land. (For example, to farm or for spiritual ceremonies).

On the other half of the paper the Participants should draw why this use of the land is important to them and what type of value the land has to them. (For example, to grow food to eat or to continue the community’s traditions).

GROUP DISCUSSIONS AND DRAWINGS: •

Walk around to the groups and make sure that the groups understand their task.

•

Remind groups to think about:

All the different ways they use their land and the things they do on their land; and

Why they do these things and what value these things have to them and their community.

PRESENTATIONS AND CLASS DISCUSSION: •

Divide the Participants into groups of three or four and give each group a large piece of paper. They should draw a line down the centre and:

Ask each group to present and explain their drawings to the rest of the Participants.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

After all the groups have presented, ask the Participants why outsiders may want to buy or take their land. What type of value do outsiders place on the land and how is this different to the value indigenous communities place on the land? (For example, a company may want to cut down and sell the trees on indigenous land for their monetary value. The indigenous community might have a burial ground on this land, which has spiritual value.)

•

Explain that in the next lesson Participants will learn how the law protects indigenous groups by recognizing the spiritual and other values they place on the land and giving them the right to continue their traditional land uses. If someone prevents a community from using their land according to traditional custom they are breaking the Land Law.

5. DEBRIEF: •

Ask volunteers whether they think it is better for indigenous communities to control and manage the land collectively or individually for the activities they described in the exercise.

•

Ask the Participants what they think happens to communities when they lose their traditional lands, or when they are prevented from living according to their custom.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS COMMUNITY LAND RIGHTS

•

2. INDIGENOUS COMMUNITY LAND RIGHTS ARE PROTECTED BY THE LAND LAW When the 2001 Land Law was being written, indigenous community leaders were consulted and had the opportunity to tell the people writing the law about their customary ways of managing their land. Because of this, the Land Law includes a section that talks just about indigenous land. It sets out rules for ownership and use that are different to those on non-indigenous land and acknowledges the traditional customs of Cambodia's indigenous people. Under the 2001 Land Law, indigenous communities have the right to continue to live on and use their traditional lands according to their traditional customs.39 This land does not belong to any one individual - it is communal. This means that the whole community has rights on the land. Land Law 2001 Article 23 (paragraph 2): 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. This is very different from the collective land use that was forced on people in Khmer Rouge times, when everyone was made to work on collective farms. Indigenous community members have the right to live on and use the land, but they must do so according to community rules. The Land Law says that indigenous communities have the right to register their land and get a collective title. To get this title, first the community itself must be officially registered, and then the community's land can be registered. After a collective title has been issued, the land will still belong to the whole community and not to one person.40 The collective title will provide legal confirmation that the land belongs to the community named on the title, and it will outline the boundaries of the land. This is supposed to help the community to collectively protect their land and avoid land disputes. However, at the time this Guide was published in September 2009, it was still not possible to register collective title. It is important to remember that communities still have the right to live on and use their traditional lands. This right is protected by Article 23 of the Land Law.

39 40

Land Law 2001, Article 23. Land Law 2001, Article 26.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

HOW CAN AN INDIGENOUS COMMUNITY REGISTER THEIR LAND? Registering community land is a two stage process: 1. 2.

First, the community itself must be registered; and Second, the community can register its land.

So far there is no law about the procedure for registering indigenous communities. The Land Law gives indigenous communities the right to register their traditional land.41 The procedure for doing this is explained in a sub-decree, which was passed in 2009.42 However, this cannot be used until there is a procedure for registering communities. This means that at the moment it is not possible to get collective title. Article 23 of the Land Law says that until indigenous communities get collective title to protect their land, they have the right to manage and use their land according to their customs.

2.1. WHICH TYPES OF LAND CAN BE REGISTERED AS INDIGENOUS COMMUNITY LAND? The Land Law gives indigenous communities the right to register their traditional lands, including land on which they live and farm.43 The Sub-decree on the Procedure for Registering Indigenous Community Land says that the following land can be registered as indigenous community land: • • • •

Land on which people live Farming land, including land left empty for shifting cultivation Spirit forest land up to a total size of seven hectares Cemetery forest land up to a total size of seven hectares44

Until they are registered as indigenous community land, these kinds of land are classified as State property. However, indigenous communities have the right to continue to manage and use the land according to their customs.45

Cross Reference Classification of Land

Land Law 2001, Article 26. Sub-decree on the Procedure for Registering Indigenous Community Land 2009. 43 Land Law 2001, Article 26. 44 Sub-decree on the Procedure for Registering Indigenous Community Land 2009, Article 6. 45 Land Law 2001, Article 23. 41 42

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If anyone stops an indigenous community from using their land according to traditional customs, they are breaking the Land Law. Also, anyone who tries to sell indigenous community land is breaking the law. No one has a right to sell community land to people outside the community.

Some forest land that has been traditionally used by indigenous communities cannot be registered as indigenous community property, but indigenous communities have the right to continue their traditional uses. These use rights are clearly set out in the Forestry Law, and according to that law, they do not require a permit from authorities. Traditional use rights include the right to: • • •

Collect dead wood, fruits, honey and resin Use timber to build house and stables Cut grass or use land for grazing animals46

The sub-decree on registering indigenous land adds to this that communities also have the right to continue using water sources, for example streams or rivers, in the forest. The sub-decree also states that to continue any of these traditional uses, communities must make an agreement with the relevant authorities.47 This is different from the Forestry Law, which says no permit is required. Forestry Law 2002 Article 40: For local communities living within or near the Permanent Forest Reserves, the state shall recognize and ensure their traditional user rights for the purpose of traditional customs, beliefs, religions and living as defined in this article. The traditional user rights of a local community for forest products & by-products shall not require the permit. The Forestry Law is a higher law than the sub-decree, so it should be the rule that is followed.

46 47

Forestry Law 2002, Article 40. Sub-decree on the Procedure for Registering Indigenous Community Land 2009, Article 7.

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AIM: Participants will know that the Land Law protects indigenous land rights. They will know and understand which types of land can be registered as collective ownership and which types of land cannot be registered, but on which communities still have rights to use. MATERIALS: Whiteboard or flipchart, markers, copies of Handout 1. METHOD(S) USED: Question and answer, group discussion using pictures. Procedure

Time Frame (in minutes)

Introduce the information in Sections 2 and 2.1

Group discussions

Debrief

Total:

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LESSON 2: HOW ARE INDIGENOUS COMMUNITIESâ€™ LAND RIGHTS PROTECTED IN CAMBODIA?

INSTRUCTIONS TO FACILITATOR 1.

INTRODUCE THE INFORMATION IN SECTIONS 2 AND 2.1:

Section 2 and 2.1 - It is important that Participants understand: • •

• •

That the Land Law gives indigenous communities the right to register their land as collective ownership. That communities will not be able to register their land until the legal procedure is finished and passed by the government, including the procedure for registering indigenous communities. That until then, under the Land Law, indigenous communities have the right to continue to manage their land according to traditional customs. That some kinds of land can be registered as collective ownership, and some kinds of land cannot. However, communities still have the right to use forests according to their customs. GROUP DISCUSSION: •

Introduce the activity by telling Participants that in this lesson they will look at several pictures and decide what rights indigenous communities have to use or register the land in the picture.

•

This exercise can be done in small groups or as one big group.

•

Give out copies of the pictures of different types of land (Handout 1). Go through the different pictures and explain what they show: 1.

Old forest

A forest area where indigenous people tap resin from trees

Farmland of an indigenous community

An indigenous cemetery in the forest

An indigenous community village

•

Next, divide the Participants into groups to discuss the pictures, or hold a whole class discussion.

•

If this lesson is done in one big group, you should try to get all Participants to join in this exercise. Make sure that Participants give reasons for their answers.

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If the lesson is done in small groups, after the small group work you can ask each group to explain their answer about one of the pictures and see if the other groups agree. Do this until all the pictures have been discussed.

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â€¢

Suggested Answers: 1.

Old forest: If a community has spirit or burial forest in this area, they have the right to register for collective title over part of the land. A community can register up to seven hectares of forest as spirit forest, and up to seven hectares as burial forest. These can be in one place or in several areas, but cannot total more than seven hectares. Until a community can register this land, it has the right to continue to manage the land according to traditional custom. This is protected by Article 23 of the Land Law. If a local indigenous community has traditionally used this forest to collect forest products, such as fruits, resin, or small amounts of timber for housing, according to the Forestry Law they have the right to continue using the forest for these uses. (The sub-decree on registering indigenous land says that communities need permission to do this, but the Forestry Law says they do not and it is a higher law.) The forest cannot be registered as indigenous community land and will remain State land, but the indigenous community has the right to continue using it according to custom.

Forest area where indigenous people tap resin: Because an indigenous community has traditionally used this forest area to tap resin, according to the Forestry Law they have the right to continue using the forest for this use. (The sub-decree on registering indigenous land says that communities need permission to do this, but the Forestry Law says they do not and it is a higher law.) The forest cannot be registered as indigenous community land and will remain State land, but the indigenous community has the right to continue using it according to custom.

Farmland of an indigenous community: Indigenous communities have the right to register farmland as collective indigenous land. This includes land that is reserved for shifting agriculture. This means land which is not being farmed at the moment, but will be in the future, can also be registered. However, the procedure for registering communities has not been passed yet, so indigenous communities are not yet able to register the land. Until a community is able to register collective land, it has the right to continue to manage these lands according to traditional custom as protected by Article 23 of the Land Law.

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An indigenous cemetery in the forest: Indigenous communities have the right to register cemetery land in the forest as collective indigenous land. The amount of forest cemetery registered cannot be larger than seven hectares in total. However, the procedure for registering communities has not been passed yet, so indigenous communities are not yet able to register the land. Until a community is able to register collective land, it has the right to use this land according to traditional custom as protected by Article 23 of the Land Law.

An indigenous community village: An indigenous community has a right to register residential land as collective indigenous land. However, the procedure for registering communities has not been passed yet, so indigenous communities are not yet able to register the land. Until a community is able to register collective land, it has the right to use this land according to traditional custom as protected by Article 23 of the Land Law.

DEBRIEF: •

To end the exercise, facilitate a discussion on whether Participants think that the rights given to indigenous communities in the law are fair.

•

You can ask the Participants the following questions, making sure they give reasons for their answers:

Do you think that indigenous communities should have full ownership and management of all of their traditional lands?

It is not possible at the moment to register community land, but when it is, do you think this will be the end of land problems for indigenous communities? Will a collective title protect indigenous lands?

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3. INDIGENOUS COMMUNITY LAND RIGHTS Just like individual private landowners, indigenous people have land rights. The Land Law says, “collective ownership includes all of the rights and protections of ownership as are enjoyed by private owners.”48 Until indigenous communities can register their land they have the right to continue their traditional use of the land.49 This means indigenous communities can continue to: • • • •

Live on and use the land; Stop other people from outside the community coming onto the land; Build homes on the land and make improvements to the land; and Use forests for burial grounds and religious purposes according to traditional custom.

Even if collective titles have not yet been issued, indigenous communities still have all of the rights listed above which follow their traditional use of the land. Until collective title is available, Article 23 of the Land Law gives indigenous communities the right to manage and use their lands in the same way they have always done. Other people must respect this right, and government officials have a duty to respect and enforce this law. If anyone from outside the community attempts to take traditional indigenous land, they are violating Article 23. If somebody cuts down spirit forest or clears burial grounds, they are stopping indigenous people from continuing to manage their land according to tradition. In this case they are also violating Article 23 of the law. If an official knowingly lets this happen they are also violating the Land Law. Many indigenous communities also have community rules that members follow. In addition to the rights mentioned above, community rules also give members rights and duties within their communities. These rules often differ from community to community. CAN INDIGENOUS LAND BE SOLD? Indigenous community land cannot be sold to people outside the community. The Land Law states that indigenous community land must be managed according to traditional custom. If it is not part of a community's custom to sell land to people outside the group, then: • • •

It is illegal for someone inside the community to sell the land to an outsider, It is illegal for outsiders to buy community land, and It is illegal for an official to witness or allow the sale.50

Land Law 2001, Article 26. Land Law 2001, Article 23. 50 Statement by Indigenous Peoples at the first Forum of Cambodia’s Indigenous Peoples, Kampong Speu Province, September 2004. 48 49

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Indigenous community elders asked for this to be included in the 2001 Land Law. It was done to respect indigenous culture and avoid land becoming property of people outside of the community.

LESSON 3: INDIGENOUS COMMUNITY LAND RIGHTS AIM: Participants will think about which indigenous land rights are protected by the Land Law. MATERIALS: Whiteboard or flipchart, markers. METHOD(S) USED: Group discussion, role-play and presentations. Procedure

Time Frame (in minutes)

Introduce the information in Section 3

Explain the exercise and divide Participants into four groups

Groups discuss and plan role-play

Role-plays and class discussion

Debrief

Total:

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INTRODUCE THE INFORMATION IN SECTION 3:

Section 3 - It is important that Participants understand: • •

That indigenous communities have the same rights as individual landowners, but these rights must be exercised according to traditional custom. That indigenous land cannot be transferred to people outside the community if this is not in line with traditional customs.

EXPLAIN THE EXERCISE AND DIVIDE PARTICIPANTS INTO FOUR GROUPS: •

Explain that the class will create role-plays that show indigenous land rights being used.

•

Divide the Participants into four groups and give each group one of the following four land rights:

•

Tell the Participants that they should not tell the other groups which right they have.

GROUPS DISCUSS AND PLAN ROLE-PLAY: •

To live on and use the land To stop other people from the community coming onto the land To build homes on the land and make improvements to the land To use forests for burial grounds and religious purposes according to traditional custom

The groups will then have ten minutes to discuss the right and create roleplays showing how an indigenous community would use these rights.

ROLE-PLAYS AND CLASS DISCUSSION: •

The groups will perform their role-plays. After each role-play, the Participants who are watching should try to guess which right the role-play shows.

•

Ask the members of the group to talk about their role-play.

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INSTRUCTIONS TO FACILITATOR

Suggested Answers:

To live on and use the land: The community members can enter and leave the community’s land when they want to. Communities can farm the land using traditional methods, for example, raising animals, growing crops, and using shifting agriculture.

To stop other people from coming onto the land: The community members can agree to keep outsiders from coming onto their land.

To make improvements to the land: The communities can build homes and other buildings on their land for community members.

To use forests for burial grounds and religious purposes according to traditional custom: Community members can use areas which are traditionally used for burial and also spirit forests. These forests cannot be cut down by anyone.

DEBRIEF: •

Ask volunteers for examples of how each of the rights of collective ownership can be violated by outsiders.

•

Some examples include:

Some indigenous communities have been evicted from their land and have not been allowed to return.

Land developers have taken communities’ traditional farming lands and used them for plantations.

Land speculators have taken indigenous community land and built fences around the land. A lot of this land is still empty and unused, because the person who took it is waiting for the price to go up so that they can sell it for a profit.

Authorities have given permission to companies and individuals to come onto indigenous land and develop or inspect them for development opportunities.

Developers have cut down the trees in areas that are indigenous communities’ traditional spirit forests or burial grounds. These trees are often sold for timber and sometimes the land is turned into plantations.

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Many indigenous communities around the world traditionally do not sell their land, and many do not think that their land should be privately owned. Usually, according to the customs of indigenous communities, people can live on and use the land and should also respect and care for the land. In these communities, it is not customary to sell land to outsiders. This means that one of the rules of collective ownership of these communities would be “No one can sell community land to people outside the community.” Traditionally, indigenous communities in Cambodia do not sell land to people that are outside the community.51 Because of this, and for other reasons already discussed, agreements between a member of an indigenous community and an outsider to sell community land are illegal. Outsiders often want to buy land from indigenous communities because it is often worth a lot of money. However, selling collective land to outsiders is illegal, and it impacts the community in many ways. For example, if land is sold to people or groups outside of the community, then indigenous communities may lose their traditions and their unity. This can sometimes cause the community to break up and their traditional way of life to end. A whole culture can be lost if there are land problems. When a culture is lost, people lose their identity. When this happens, social problems can increase. In some communities that have lost their traditional lands, there are problems like too much drinking, fighting and domestic violence. Very often, big companies and land developers buy many small pieces of community land over time. As the total size of the community’s land gets smaller and smaller, the community gets weaker and weaker. The length of time that communities leave land fallow gets shorter, and the land does not produce as much as it once did. An indigenous community can protect its collective land and traditional way of life by being organized and united and not selling community land.

Statement by Indigenous Peoples at the first Forum of Cambodia’s Indigenous Peoples, Kampong Speu Province, September 2004. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

INDIGENOUS COMMUNITY LAND RIGHTS

4. WHAT IS THE IMPACT OF SELLING COMMUNITY LAND?

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LESSON 4: THE IMPACT OF SELLING COMMUNITY LAND AIM: Participants will discuss and share experiences and ideas about the impacts of indigenous communities selling their land. MATERIALS: Whiteboard or flipchart, markers, map prepared before lesson. METHOD(S) USED: Group discussion, class discussion Procedure

Time Frame (in minutes)

Introduction activity

Introduce the information in Section 4

Small group discussions

Class discussion with map

Debrief

Total:

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INSTRUCTIONS TO FACILITATOR Note: Before you start this lesson, draw Map 1 (see below) on a piece of flipchart paper for use later. 1.

INTRODUCTION ACTIVITY: •

Ask all the Participants to stand up and come to an open space in or outside the room.

•

Explain that you will ask the Participants a question. If the Participants’ answer to the question is “yes” they should stand on your left, if their answer is “no,” they should stand on your right. Explain that there is no right or wrong answer to the question and if Participants cannot decide they can stand in the middle.

•

Then ask the following question:

Should individuals within indigenous communities be allowed to sell their plot of land to outsiders?

•

Give Participants a few minutes to decide where to stand. Once all the Participants have moved to either the right, left or middle of the space, the Facilitator should ask someone from the left (who said “yes” to the question) why he or she decided to stand there. Ask the views of one or two more of the Participants standing on the left.

•

Then do the same with Participants standing on the right (who answered “no” to the question) and ask Participants standing in the middle why they could not decide.

•

This activity may start a lively discussion, but you should make sure that after ten minutes the Participants return to their seats.

INTRODUCE THE INFORMATION IN SECTION 4:

Section 4 - It is important that Participants understand: • • •

That in Cambodia, indigenous communities do not traditionally sell their land to outsiders. That in some cases, selling parts of the community land to outsiders can break up a community. That when a community loses its culture, social problems often occur.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

SMALL GROUP DISCUSSIONS: •

After teaching from the text, divide the Participants into groups of four. Ask them to think of and discuss reasons why they think some indigenous community members (or whole communities) might decide to sell parts of their traditional land, even if it is not customary for them to do so.

CLASS DISCUSSION WITH MAP: •

After the group discussion, bring the whole class together and show the class Map 1 below. Draw this map onto a flipchart paper before the class starts. Map 1

•

Explain that the area at the top of the map is forest, on the left is a river and on the right a plantation. The large area in the middle is indigenous community land. The community has lived and farmed there for many generations.

•

Ask someone to give an example of why an indigenous community member might sell some of the community’s land.

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•

If someone says, for example, “They might be approached by a wealthy and powerful person, and feel scared that if they do not sell, the person will take the land anyway.” Show this on the map:

•

The area crossed out has been sold by the community because they were scared that it would be taken anyway and they would get nothing.

•

Another Participant may say, “The village chief or local official might sell some land without asking the community.” Again, cross out part of the land and explain that the land has been sold by the village chief.

•

Show how the community gets cut off and divided by the land sales. After each example of a land sale, ask the Participants what effect they think this will have on the community.

•

It is also possible to use this exercise to show how communities can become divided. For example, land in the middle of the village may be sold, dividing the community in half.

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Suggested Answers:

•

Answers will be different depending on the group, but hopefully the demonstration will show that when indigenous communities are united, it is more difficult for people to take away their land.

•

You should make sure to say that this demonstration was just a fun way to show that to protect your land, and protect your culture, it is necessary for communities to be aware and to be organized.

DEBRIEF: •

Encourage the Participants to discuss the importance of community unity. Ask Participants for examples of what they think communities can do to stay united and strong.

•

Explain that it is harder for others to take the land of indigenous communities if the community works together and is united. Under the Land Law, indigenous communities have the right to continue to manage their traditional lands, but they will also have to be strong and united to prevent outsiders from taking their land away.

•

The same is true internationally: when indigenous community members from different countries work together, they can help to create international documents like the UN Declaration on the Rights of Indigenous Peoples. These documents can create commitments that all governments should try to follow to respect indigenous people’s rights.

•

When communities are united and strong, they can help ensure that the government upholds these commitments and respects the rights of indigenous communities and their relationship to their land.

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Collective ownership: If land is collectively owned it belongs to a group of people instead of one person. For example, indigenous community land belongs to all the members of the indigenous community who live or farm there.

Shifting cultivation: Sometimes an indigenous community leaves part of the land unused but plans to farm the land in the future. This is called shifting cultivation. It is a traditional method of farming that renews the soil so that crops can grow better.

International indigenous movement: During the last 40 years, indigenous people around the world have come together to advocate for indigenous peoples’ rights. They formed organizations of indigenous people from different countries. These indigenous organizations worked together to help create and influence new laws and rules that protect indigenous peoples’ rights.

UN Declaration on the Rights of Indigenous People (UNDRIP): The Declaration recognizes the right of all indigenous peoples to be free from discrimination, to practice their religious traditions, manage their land according to their customs, and to be involved in the decisions that affect their lives. While the Declaration is not law it is an important international document, agreed upon by most nations, that recognizes indigenous peoples’ rights.

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DIFFICULT TERMS:

HANDOUT 1 â€“ LESSON 1

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Outcomes After completion of this module, Participants will: 1. Know what compensation is. 2. Know when an eviction is legal or illegal under Cambodian law. 3. Be aware of their rights to compensation under Cambodian law in different types of eviction cases. 4. Understand the meaning of “fair and just” compensation.

1. WHAT IS COMPENSATION? Compensation is money or something of value that is given to a person when someone else damages or takes their property. For example, if two people driving motos are involved in an accident, the person whose fault it is should pay for the damage that they cause to the other person’s moto, or any personal injury they cause.

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In the case of an eviction, compensation can be money, replacement land, Cross Reference Evictions & new housing or any combination of the three. Compensation can also be Your Rights given for things such as earnings from jobs and businesses that were lost, or crops or trees that were destroyed or lost because of an eviction. The important thing is that you receive compensation that is at least equal in value to what you have lost. COMPENSATION AND ADEQUATE HOUSING Compensation is very important in making sure that the government respects your human right to adequate housing. If you lose your house or land in an eviction, the government has a duty under international law and the Cambodian Constitution to make sure you have access to adequate housing somewhere else. This duty is owed to all people in Cambodia who are evicted, including owners, legal possessors, occupiers and renters. One way for the government to meet this duty is to make sure that you get enough compensation. This could be money to buy an adequate house, or you could be given an actual house and plot of land to replace what was taken from you. Having an adequate house means that you have access to all basic facilities such as water, sanitation, schools and hospitals and that you have livelihood opportunities, such as access to jobs or farmland after you move. Under Cambodian law, owners should receive compensation in the following three situations: 1.

If you are illegally evicted by a person or company.

If you are illegally evicted by the government.

If you are an owner and you are legally evicted by the government for a public interest reason.

The only time you are not entitled to compensation is when you are occupying land that you have no right to occupy. For example, if you try to live on someone elseâ€™s land, you can be legally evicted without compensation. However, remember that under international law the government must respect your right to adequate housing and make sure that you are not made homeless after an eviction, even if you were illegally occupying someone elseâ€™s land.

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AIM: Participants will become familiar with the concept of compensation, how it can be different depending on the value of the item damaged or taken, and why it is important. MATERIALS: Whiteboard or flipchart, markers, six items or pictures (for example, a krama, a watch, a motorbike, a pig, a basket of fruit and a house). METHOD(S) USED: Group discussions, presentations. Procedure

Time Frame (in minutes)

Introduce the information in Section 1

Groups discuss how much compensation they think they should get for their property

Debrief

Total:

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LESSON 1: WHAT IS COMPENSATION?

INSTRUCTIONS TO FACILITATOR 1.

INTRODUCE THE INFORMATION IN SECTION 1:

Section 1 - It is important that Participants understand: • • • • •

What the meaning of compensation is. That compensation can take different forms. That compensation after an eviction should be at least equal in value to the things you have lost. That by compensating evicted families the government can meet its duties to respect the right to adequate housing. That under Cambodian law there are three situations in which you should receive compensation if you are evicted.

GROUP DISCUSSION: •

Next, divide the Participants into six groups and give each group one of the six items or pictures:

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A krama A watch A motorbike A pig A basket of fruit A house

•

Before the lesson, you should find these items, draw pictures of them, or find pictures in a magazine or newspaper. You can use different items or pictures than those listed above, but you should make sure all have different values – some should be worth a lot of money and some should be worth only a small amount.

•

Tell each group that they own their item (or the item in the picture).

•

Next, walk around the room and take the items or pictures away.

•

Tell the Participants that their property has just been taken from them. Ask the groups to discuss what compensation they think they should get in return for their item. You should also point out that the compensation does not have to be money.

PART II YOUR RIGHTS UNDER CAMBODIAN LAW

•

As the aim of this exercise is to find out the opinions of Participants, there are no right or wrong answers. However, you should encourage the Participants to put a fair price on the property that was taken away from them.

DEBRIEF: •

After the group discussion, Participants should stand up and give a brief presentation about their item and explain what compensation they think they should get in return and why.

•

If there is time, you should have some more items or pictures ready to show the class. Ask the Participants how much compensation they think they should get if that item was destroyed or taken away from them.

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Suggested Answers:

2. WHEN ARE YOU OWED COMPENSATION? 2.1. SITUATION 1 â€“ YOU ARE LEGALLY EVICTED BY THE LEGAL OWNER There is only one way a private person can legally move someone off a piece of land. The person who claims the land must have a valid and legal title to that land. A title is an official document that says that a person is the true owner of the land. In this case, the person evicted will not be owed compensation. Some people in Cambodia have fake or non-legal titles. These titles are sometimes used to trick legal possessors into thinking that they have no right to their land. Using fake or non-legal titles to trick someone out of their land is illegal and anyone who tries to do this can be sent to jail or be fined according to the law.52 If another person or private company wants to take the land you live on, they must do the following: 1.

Show you that they have a valid and legal title

Show a court the title and prove that their title is valid and legal

Get a court order saying that they have a valid and legal title and that other people living on their land must move

Take the valid and legal title and the court order to the police

Then, and only then, can the police force you to leave your land

Even a private individual who has a legal and valid title and a court order cannot use violence to evict someone living on their land. They must still ask the police to remove them from the land.53

52 53

Land Law 2001, Article 251. Land Law 2001, Articles 35 and 254.

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If you legally own or possess your land, no one else should be able to get a Cross Reference Possession valid and legal title to your land.54 This is why it is very important to insist Rights that anyone who claims to have a title to your land must show you the title. (A legal possessor is someone who has lived on their land since before the 2001 Land Law was passed and meets the conditions set out there.)55 If you do not think that anyone else could have a right to your land, then it is possible that their title is illegal and invalid. This means that you should bring any documents you have to court to prove that you are a legal possessor or owner. Legal private evictions sometimes occur when people move onto someone else’s land without knowing it is owned by someone else. If a private person follows the five steps listed above and you are evicted, you are not entitled to compensation for the land. This is the only time a private person can request that you are moved from your land and not give you compensation. However, remember that the government has an international legal duty to make sure your right to adequate housing is respected and you are not made homeless after the eviction. The government must make sure you can find adequate housing somewhere else.

Cross Reference Adequate Housing

2.2. SITUATION 2 – YOU ARE EVICTED ILLEGALLY BY A PRIVATE PERSON If a private person tries to evict you and does not follow any one of the above steps, they are breaking the law. Because they are breaking the law, you have these rights: 1.

To get a court order that requires the person trying to take your land to stop immediately

To ask the police for help

To get compensation for any harm caused to you or your property56

Anyone who harms you, your land or your property while attempting an illegal eviction must compensate you. Unfortunately, illegal evictions do sometimes happen. A person trying to take your land may not show you their title or court order because they do not actually have these documents. They may threaten you and say “you have no rights to this land.” But, without a valid title and a court order, they have no right to take your land.

Land Law 2001, Article 248. Land Law 2001, Chapter 4. 56 Decree No. 38 Referring to Contract and Other Liabilities, Article 121; Land Law 2001, Article 247. 54 55

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Cross Reference Possession Rights

EVICTIONS AND COMPENSATION UNDER CAMBODIAN LAW

ALWAYS DEMAND TO SEE THE TITLE AND THE COURT ORDER! •

If a private person does not have a title to the land, they cannot legally evict you!

•

If a private person with title does not have a court order, they cannot legally evict you!

•

If a private person with title and a court order does not have the help of the police, they cannot legally evict you!

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LESSON 2: PRIVATE EVICTIONS AND COMPENSATION AIM: Participants will know when a private person can legally evict them. They will also be aware of when the law protects their rights to stay on the land and when they are entitled to compensation. MATERIALS: Whiteboard or flipchart, markers, copies of Handout 1. METHOD(S) USED: Role-play, group discussions. Procedure

Time Frame (in minutes)

Introduce the information in Sections 2.1 & 2.2

Groups discuss and prepare role-play

Small groups perform role-plays

Debrief

Total:

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110

INTRODUCE THE INFORMATION IN SECTIONS 2.1 & 2.2:

Sections 2.1 and 2.2 - It is important that Participants understand: • • • •

A private individual may only ask for someone living on their land to be evicted if they can show legal and valid title to the land. They must request a court order to carry out the eviction, and the eviction must be conducted by the police. In this case, you are not owed compensation under the law but the government has a duty to make sure you can find adequate housing somewhere else. If you are evicted by someone and they do not follow these steps, the eviction is illegal.

GROUPS DISCUSS AND PREPARE ROLE PLAY: •

Divide the Participants into six groups and explain that they are going to create role-plays. They will have fifteen minutes to prepare before they perform for the class.

•

Give each group one of the following six role plays (see Handout 1): ROLE PLAYS

1. Narin comes back to his land one day and sees that construction workers are building a new office next to his home and have dumped lots of soil onto his land. They say that part of the land belongs to the company that they are working for. 2. Someone posted a note on the door of every house in Virak’s community. The note was from a big company. It said that the company has title to all of the land in the community, and that everyone in the community has to move off the land in one week. It also says that if they do not, the company will force them off the land. 3. A very rich businessman showed up at Chundy’s house and said that he is the real and true owner of the land. Chundy has lived on his land since 1994 and thought he was the true owner of the land. The businessman shows Chundy a title and says that he has to leave in one week or he will be forced out and arrested. 4. Mathoura comes back to her land one day and sees that a local wealthy landowner has put up a fence around most of her farm land. Mathoura has no title to the land but has lived there and used the land for farming since 1998.

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INSTRUCTIONS TO FACILITATOR

5. Sochea lives on a piece of land with her family. The land is also claimed by a wealthy individual. One morning Sochea is woken up by many police officers outside her house. They force her to leave her home and then they set it on fire. 6. Piseth has been living on and farming a piece of land for two years. He moved there thinking that the land did not belong to anyone. Last month someone came and said that they owned the land. This person had a legal title for the land. Soon after this the true owner of the land got a court order, and personally evicted Piseth. •

Participant groups should move to different parts of the room and prepare their role-plays.

GROUP ROLE-PLAY: •

The groups should present their role-play to the other Participants.

•

After each role-play, ask the other Participants the following questions:

•

Is the eviction legal?

Should the person being evicted be able to go to court to stop the eviction? Why?

Should the person get compensation?

What should the person do next?

After the Participants have given their ideas and answered the questions, give the correct answer from the Suggested Answers below.

Suggested Answers: 1.

This is not legal because: • • •

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The company did not have title to that part of Narin’s land The company did not have a court order, and The company did not get help from the police to take that part of Narin’s land.

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Virak’s community has not yet been evicted, but if the company tries to force the people to leave, it will be an illegal eviction. The company has claimed to have a title, but they have not shown the title to the community. They also do not have a court order. This means that even if the company gets the police to evict Virak’s community, it will still be illegal because there is no legal title or court order. If the company does try to force people off the land, they should compensate them for any damage.

This eviction is not legal because the businessman does not have a court order that says that he is the true owner of Chundy’s land. This means that the title that the businessman has may not be a valid legal title. The businessman may be trying to trick Chundy into leaving his land. Chundy should demand to see a court order and consider going to court himself to challenge the businessman’s title.

Mathoura appears to be a legal possessor. Because she is a legal possessor, no other private person can claim the land. Because half of her land was taken illegally, she can go to court. She should be able to get a court order saying that her land must be given back and she should be compensated for any damage to her land.

Because the wealthy individual never showed Sochea a valid legal title and a court never ordered the police to evict Sochea, the eviction is illegal. This means that Sochea must be compensated for the damage that the fire caused to her home and property.

This eviction is not legal. Even though the true landowner has title and a court order, he or she cannot personally force Piseth to leave the land. This must be done by the police.

DEBRIEF •

After Participants finish their presentations, ask them to summarize what must happen for an eviction to be legal.

•

Ask Participants to give some examples of an illegal eviction.

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Narin should be able to go to court and get a court order stating that the construction company violated his land rights. He should also be compensated for the damage done. The company may have to return the land and repair or pay for any damage they caused to it. Alternatively, the company may have to give Narin enough money to pay for someone to clear and repair the land.

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•

Then ask the Participants if they think that communities facing eviction have more chance of getting fair compensation if they work individually or together.

•

Ask the Participants for their answers and why they feel this way.

•

Explain to the Participants that if communities are united and work together in a land dispute, their voice may be stronger and it can make it harder for the authorities to ignore the dispute. In cases where people have fought successfully against evictions, they have usually been active, organized and worked together as a community.

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AUTHORITIES

Sometimes it is possible for the government to legally take a person’s land. There are two situations in which the government can legally take someone’s land.

Cross Reference Evictions & Your Rights

If the person owns the land the government must have a public interest reason to take it.

If the person is living on State land, the government has the right to take it. Owners and legal possessors are not living on state land so they cannot be legally evicted for this reason.

Cross Reference Classification of Land & Possession Rights

According to the Land Law, it is illegal to stop people enjoying their peaceful and legal possession. This should protect possessors until the land is registered.57 This means that there should be no evictions of legal possessors, even if there is a public interest reason, because first the land must be assessed and registered by the Cadastral authorities.

2.3.1. WHAT IS THE “PUBLIC INTEREST”? The public interest is something that is for the benefit of the people because it will help them improve their standard of living or keep them safe. It is something that is for the benefit of many or all Cambodians.58 For example:

• • • • • • • • •

57 58

PROBABLY PUBLIC INTEREST

UNLIKELY TO BE PUBLIC INTEREST

Roads Bridges Ports Hospitals Schools Parks Protection against pollution Protection of forests and rivers Safety and health reasons

• • • • •

Private homes Shopping malls Rubber plantations Casinos Making the city look modern

Land Law 2001, Article 248. The meaning of ‘public interest’ is not completely clear. The government is currently writing a new law that will explain the meaning of public interest. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

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2.3. SITUATION 3 – YOU ARE LEGALLY EVICTED BY GOVERNMENT

The government is only allowed to take an ownerâ€™s land if there is a genuine public interest reason.59 For example, in the picture below several people are displaced to make way for a new public school. This may be in the public interest because the school should provide free education to the children in the area.

Here, a community has been evicted and demolished.

The Constitution of the Kingdom of Cambodia 1993, Article 44; Land Law 2001, Article 5.

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After the land is cleared, a public school is built. This may be in the public interest. 2.1.1. IF IT IS IN THE PUBLIC INTEREST, SHOULD I GET COMPENSATION? The answer to this question depends on whether: • • •

You own your land, You are a lawful possessor of your land, or You are an unlawful possessor or renter of a piece of land.

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Owners If you have a valid legal title to your land, you are entitled to compensation. When the government plans to take your land for one of these public purposes, you have a right to compensation before the government takes your land.60 This means that if the government needs to take your land to build a road or school, you must be given fair and just compensation before your land is taken.

Cross Reference Landowner Rights

Lawful possessors If, like many Cambodians, you have lived on your land for years, but do not have a valid legal title you may be a legal possessor. If you moved to your land before the 2001 Land was passed, or bought the land from someone who did, and if you meet the five requirements set out in the Land Law, you are a legal possessor.

Cross Reference Possession Rights

According to the Land Law, it is illegal to stop people enjoying their peaceful and legal possession. This should protect possessors until the land is registered.61 This means that there should be no evictions of legal possessors, even if there is a public interest reason, because first the land must be assessed and registered by the Cadastral authorities. Once your land is registered, and your possession is turned into ownership you have the same rights as all owners. This means that if the government needs your land for a public interest reason, as an owner, you must be given fair and just compensation before your land is taken.

Unlawful possessors If you do not own your land and you are not a lawful possessor, then the law says you are not entitled to compensation for the land or any improvements you have made on the land.62 Sometimes the government will offer compensation to unlawful possessors, but they are not required to do this by Cambodian law. Remember that under international law, before any evictions take place, including evictions of unlawful possessors and renters, the government has a duty to ensure there is adequate notice, information about the eviction and consultations with the people being evicted. The government must make sure people have another adequate place to live after the eviction.

Cross Reference Evictions & Your Rights

Cross Reference Adequate Housing

It is important to know that under international law you always have a right to adequate housing. This means that the government cannot simply evict you and leave you homeless even if you are illegally occupying land. The government has an obligation to make sure that you have access to adequate housing at all times. This includes access to basic facilities and jobs or other livelihood opportunities.

The Constitution of the Kingdom of Cambodia 1993, Article 44; Land Law 2001, Article 5. Land Law 2001, Article 248. 62 Land Law 2001, Articles 19 and 259. 60 61

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AUTHORITIES

The government can only take someoneâ€™s land if: 1.

It is in the public interest, which means that the government will use the land to benefit the Cambodian public.

The person is living on State land. Owners and legal possessors are not living on state land so they cannot be legally evicted for this reason.

Cross Reference Classification of Land & Possession Rights

If you own your land, it is illegal for the government to take your land and use it for a purpose that is not in the public interest. This means that the government cannot take your land and turn it into a private business development or give it to a private individual unless you agree and the business or individual buys the land from you at a price you agree to. Legal possessors cannot be evicted, even if it is in the public interest, because the Land Law provides protection until the land is registered.63 If the government illegally takes or damages your land, you have a right to go to court.64 This means that you have the right to the same things as when a private person tries to take your land. You can: 1.

Get a court order that requires the person trying to take your land to immediately stop

Ask the police for help

Get compensation for any harm caused to you or your property

For example, if the authorities illegally take someoneâ€™s land to give to an individual to build a private business, the owner can go to court to challenge the eviction. Because a private business is not a public interest reason for an eviction, the court should order the authorities and the individual to return the land to the owner and pay compensation for any harm to the property. The authorities or the person who wants the land can make an offer to the people who own or possess the land to purchase it from them.

63 64

Land Law 2001, Article 248. Decree No. 38 Referring to Contract and Other Liabilities, Articles 121; Land Law 2001, Articles 247-50. PART II YOUR RIGHTS UNDER CAMBODIAN LAW

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2.4. SITUATION 4 - YOU ARE ILLEGALLY EVICTED BY GOVERNMENT

Here, a community is being evicted and demolished.

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A private business is built on the site â€“ this is not in the public interest so the eviction was not legal.

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LESSON 3: GOVERNMENT EVICTIONS & COMPENSATION AIM: Participants will know that the government may only evict people from their land in two situations. Participants will know that owners, legal possessors, unlawful possessors and renters have different rights to compensation, and they will be able to understand how this impacts on their own situation. MATERIALS: Whiteboard of flipchart, markers, copies of Handouts 2, 3 and 4. METHOD(S) USED: Case study, group discussions, quiz. Procedure

Time Frame (in minutes)

Introduce the information in Sections 2.3 & 2.4

Small groups discuss case studies

Presentation of case studies and discussions

Debrief

Total:

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INTRODUCE THE INFORMATION IN SECTIONS 2.3 & 2.4:

Sections 2.3 & 2.4 - It is important that Participants understand: • • • • • •

That there are two situations in which the government can legally evict people: for the public interest and to protect state land. What the meaning of "public interest" is. That the government may only legally evict an owner if the land will be used for the public interest. Legal possessors should not be evicted, even if there is a public interest reason because their land has not been registered yet. That the right to compensation is different depending on whether the evicted person is an owner, legal possessor or an unlawful possessor or renter. That if an eviction by the government is not legal, the evicted person should be compensated or have the land returned. •

When you discuss the public interest, it may be useful to show Participants copies of the pictures from the text. They are also in Handout 2 (public interest) and Handout 3 (not in the public interest).

•

Make copies of these pictures and pass them around while you teach.

SMALL GROUPS DISCUSS CASE STUDIES: •

Next, divide the Participants into six groups and give each group one of the following case studies (see Handout 4): CASE STUDIES

1. Phanna has lived in the town of Pailin since 1994. Her house and land are close to a sewage canal. She has used the land to grow crops for many years. A government official came to her village and told the village chief that the canal was going to be made wider by three meters. This means that Phanna will lose some of the land that she uses to grow crops. Some of her crops will also be destroyed. 2. Two years ago, Socheat built a small home on the riverbank. A government official came to his village to tell everyone that a bridge was going to be built across the river nearby. Because of the construction, the land near the bridge will become very unstable and could fall into the river. The government official told Socheat and some other families that they will have to move from their homes.

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INSTRUCTIONS TO FACILITATOR

3. Sothea has title to her land. An official came to her house and told her that the government was taking her home to build a public hospital. The government official promised to give compensation to Sothea only after she moved out and the hospital was built. Sothea refused because she wanted the compensation before she moved. She was later forcibly evicted by government forces. 4. One day villagers in Sothanin’s community were told that a new farming concession had been granted to a company over part of the community’s farmland. They were told that everyone without title has no right to compensation for their rice fields, but they would be able to get jobs working on the new rubber plantation. Sothanin does not have title to his four hectares of rice paddy, but he has farmed the land since 1987. Sothanin and many other community members refused to give up the land. Eventually the company brought in bulldozers and took the land.

•

Participant groups should move to different parts of the room to read and discuss their case studies. Tell the groups that they have 15 minutes to discuss their case.

•

The groups should discuss the case and decide if the eviction is legal or illegal and whether the affected people have a right to compensation.

PRESENTATION AND DISCUSSION: •

The small groups should each present their case studies to the other Participants.

•

After the group presents their case study, they should act as Facilitators and ask the other Participants if they think the eviction is legal, and if the affected people have a right to compensation.

•

The group should lead a small discussion on these questions.

Suggested Answers:

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The contract is not in writing and even though Sopheap and Sochea have known each other for a long time, a contract to sell land must be in writing to be legally valid.

This contract is made under duress because the seller is scared that he will lose the land if he does not sell.

This contract is valid because it is freely entered into by both Sopat and Phanna. It is in writing and was made in an atmosphere of trust and honesty. The fact that Phanna later thought that there were bad spirits does not make the contract invalid so he cannot cancel the contract.

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The contract is invalid because of duress. The people who agree to the resettlement are scared because they have been told they are illegal squatters. Many of the residents have been on the land for many years, so they may be legal possessors. If this is the case, the officials who said that they are illegal have also been dishonest by saying they are squatters.

The community representatives tricked some people into signing the document. This is fraud so the contracts are invalid. Children cannot sign the contract because they do not have legal capacity. The contracts which the representatives signed for the community members are not valid because they cannot sell land that does not belong to them. Also, there is no agreement from the real owner of the land.

DEBRIEF: •

Ask Participants if they have ever heard of any of these things happening in their community or in other communities. Encourage Participants to share their stories.

•

To review this exercise, organize the Participants into a large circle and play a quiz game for ten minutes. Play some music and ask the Participants to throw a ball to another person in the circle. Stop the music after a few seconds and ask the Participant who is holding the ball a question (if you have no music, you can sing a song or clap).

•

You can ask questions about anything that was covered in this exercise, for example:

What is a contract? What is the purpose of a contract? What is one thing that can make a contract invalid? (This question can be asked several times.) What is fraud? What is duress? What is incapacity? Can you give one example of an invalid contract?

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DIFFICULT TERMS: 1.

Capacity: Capacity is the ability to do something, in this case the ability to make a contract. Some people do not have the capacity to make a contract for example, children or people with a severe mental illness. A lack of capacity makes a contract invalid.

Contract: A legal agreement that two or more people enter into freely. If this agreement is broken, the people who signed the contract can go to court to force the contract to be followed.

Duress: When someone is pressured or scared by another person to do something. Duress makes a contract invalid.

Fraud: When someone is tricked into doing something. Fraud makes a contract invalid.

Invalid contract: If one of the ingredients necessary for a valid contract is missing, the contract is not good, or invalid. If a contract is invalid, it does not have to be followed and no one can legally be forced to do what an invalid contract says.

Legally enforceable contract: A valid contract that must be followed. If someone who agrees to a contract later does not follow it, the court can order them to do what they agreed to.

Valid contract: A good contract that has all the necessary ingredients and follows the law is valid. A valid contract must be followed by all the people who agreed to it. If someone does not follow the contract, the other person can go to court and ask the court to tell them they must do what they agreed to.

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NAME

CONTRACTS FOR LAND SALE

HANDOUT 1 â€“ LESSON 1

SIGNATURE

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HANDOUT 2 - LESSON 1 PART II YOUR RIGHTS UNDER CAMBODIAN LAW

ROLE-PLAYS 1. Two people who live in the same commune are talking. Sopheap says

that she would like to sell her land. Sochea says that she would like to buy the land. They agree to a fair price quickly and are both very happy about the deal. They have known each other for a long time and trust each other. Sochea takes out a large amount of money from her pocket and gives it to Sopheap. They shake hands happily and both believe the contract is final. 2. A rich businesswoman wants to buy land to develop.

Many people already live on the land that the businesswoman wants to buy. She has told the people living there that life is going to get very difficult for them because if they do not sell the land soon it will be taken anyway and they will get nothing. One member of the community argues with the businesswoman and the businesswoman becomes angry and says, “If you do not sell your land to me I will come back and take it anyway, and you will get nothing.” This makes the villager very worried for the safety of his family and he agrees to sign a contract even though he thinks that the money offered is not enough.

3. Sophat has owned two hectares of land in Battambang since 1998. One

day he is offered a very good job in Phnom Penh and he decides that he wants to sell his land in Battambang. Sophat and Phanna negotiate a price for the land that they are both happy with and write a contract to sell the land. Sophat and Phanna both thumb-print the contract in front of the village chief. Later Phanna thinks that there are bad spirits occupying the land and he gets angry with Sophat for selling him this land.

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HANDOUT 3 – LESSON 1

4. A government official posts eviction notices around a lakeside village

saying that the area has been sold and everyone must leave within the month. Many of the people living there have been there since the 1990s, but the official says they are illegal squatters without any title. The people try and negotiate with the government and the company, and they are offered a plot of land and house at a resettlement site. The resettlement site is outside the city and far from jobs, schools and services. Many of the residents sign an agreement to go to the resettlement site because they are scared and the government says it is the best offer they will get because they are illegal squatters. 5. A community that was threatened with eviction decided to choose

community representatives to deal with the government and company involved. Two of these representatives persuaded people in the community to join a community savings group. Some community members signed a document that they thought was about the savings group, but the representatives had tricked them into signing a contract to sell the land. Some children signed the document for their parents. Some people refused to sign the document, but the representatives signed for them.

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Continuous (possession): Possession must be continuous. This means a possessor cannot leave the land unoccupied or unused for a long period of time and then come back, unless this is part of the natural use of the land.

Contract: A legal agreement that two or more people enter into freely. If this agreement is broken, the people who signed the contract can go to court to force the contract to be followed.

Duress: When someone is pressured or scared by another person to do something. Duress makes a contract invalid.

10. Evidence: Facts or information that show that something is true or valid.

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GLOSSARY

11. Fair and just compensation: This term is not explained in Cambodian law. In practice, most people believe that to be fair and just, compensation should be at least equal to the value of the property that is taken or damaged. 12. Fraud: When someone is tricked into doing something. Fraud makes a contract invalid. 13. Good faith: Honest and not trying to deceive others. 14. Immovable property: Property that cannot be moved. For example, land and anything that is attached to the land and cannot be moved without destroying it, for example a house or large tree. 15. Indigenous community property: Land on which an indigenous community lives or carries out traditional agriculture. 16. Indigenous community: A group of people in Cambodia who share ethnic, social, cultural and economic unity. They practice a traditional lifestyle and have distinct customs and practices. 17. International indigenous movement: During the last 40 years, indigenous people around the world have come together to advocate for indigenous peoplesâ€™ rights. They formed organizations of indigenous people from different countries. These indigenous organizations worked together to help create and influence new laws and rules that protect indigenous peoplesâ€™ rights. 18. Invalid contract: If one of the ingredients necessary for a valid contract is missing, the contract is not good, or invalid. If a contract is invalid, it does not have to be followed and no one can legally be forced to do what an invalid contract says. 19. Land Register: The official list and description of land plots and owners in Cambodia. 20. Legally enforceable contract: A valid contract that must be followed. If someone who agrees to a contract later does not follow it, the court can order them to do what they agreed to. 21. Monastery property: Land and buildings within the grounds of Buddhist pagodas. 22. Ownership: Ownership gives a person full rights to a piece of property. Ownership is the strongest right anyone can have over land. It allows the owner to use their land in any way they want, as long as the way they use the land does not break any laws. 23. Possession: When someone lives on, uses or occupies a piece of land but does not officially own the land by having title. When someone meets all the criteria in the 20001 Land Law they are legal possessors and have many of the same rights as

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24. Private property: Property that is owned or legally possessed by a private individual or company. 25. Public interest: Something that is for the benefit of the people because it will help them improve their standard of living, provide an important service, or keep them safe. 26. Register: To add something to an official list. When land is registered the person it is registered to is given a document of ownership (or title) and this can only be questioned in court. 27. Shifting cultivation: Sometimes an indigenous community leaves part of the land unused but plans to farm the land in the future. This is called shifting cultivation. It is a traditional method of farming that renews the soil so that crops can grow better. For example, a community may not use part of a rice paddy now but may plan to use this land next year. 28. State private property: Property that belongs to the State but is not State public property, because it is not available for the public to use or does not provide a service to the public. If State public property loses its public interest use, it can be changed to State private property. 29. State public property: Property that belongs to the State but is available for the public to use or provides a service to the public. This may be property of natural origin (e.g. lakes and forests), property for public use or service (e.g. railways, roads and public parks), and archeological and historical sites. 30. Title: An official record that states that a person legally owns a piece of land. 31. UN Declaration on the Rights of Indigenous People (UNDRIP): The Declaration recognizes the right of all indigenous peoples to be free from discrimination, to practice their religious traditions, manage their land according to their customs, and to be involved in the decisions that affect their lives. While the Declaration is not law it is an important international document, agreed upon by most nations, that recognizes indigenous peoplesâ€™ rights. 32. Unambiguous: Possession must be clear, including the boundaries of the land. 33. Valid contract: A good contract that has all the necessary ingredients and follows the law is valid. A valid contract must be followed by all the people who agreed to it. If someone does not follow the contract, the other person can go to court and ask the court to tell them they must do what they agreed to.

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GLOSSARY

owners. They also have the right to apply for title. Renters and people with other specific rights to use and live on the land are not possessors.