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Cambodia: Landmark Indigenous Land Rights Case To Be Heard in Ratanakiri Provincial Court
Background Briefing Memo
Legal Aid of Cambodia (LAC), Cambodian Association for Human Rights and Development (ADHOC), Oxfam Great Britain, and Human Rights Watch issue the following background briefing memo on a major land conflict in Ratanakiri province.
Using fraud and forgery of official documents, district officials in Ratanakiri province and intermediaries of Royal Cambodian Armed Forces Gen. Nuon Phea are attempting to force nearly one thousand indigenous minority villagers to give up rights to 1,250 hectares of land that their families have lived on for generations.
The villagers have filed a lawsuit before the Ratanakiri provincial court seeking to protect their rights to the land. This is expected to be heard in February 2001. The case is important not only because it address the issue of land rights for indigenous peoples in Cambodia, but also the broader problem of unlawful seizures of land by powerful government officials.
In 1997 Bokeo district officials told the villagers, who are members of the Jarai and Tampuen ethnic groups, that their land was needed for a government development project. The officials and intermediaries working for Gen. Nuon Phea pressured the villagers to thumbprint documents that - without their knowledge - certified the villagers as legal owners of their land and then transferred those certificates of ownership to Nuon Phea. In exchange, each family received two kilos of salt.
In May 1999, after the villagers became aware that their land had effectively been "sold" for private purposes, they filed a complaint with the Ratanakiri provincial court. In August 1999, the Ratanakiri governor formed a provincial land dispute committee to look into the case. Despite pressure on the villagers from local district officials and agents of Nuon Phea to accept compensation for their land or risk losing it, the villagers did not agree to give up their land. Eventually, the case was referred to a national-level land resolution committee - primarily because the dispute involved such a high-ranking general. In September 2000, the national committee referred the case back to the Ratanakiri provincial court, where it is expected to come to trial by February.
The villagers have unanimously stated that they want their land back. They have told legal aid and human rights workers that they want both the so-called sales agreement and the certificates of land possession to be cancelled.
"If we had known we were giving up our land for salt, we wouldn't have done it," said one villager. "We don't want money. We want our land. We can't plant rice in the heavens. When the money is finished we will still need land for our grandchildren. The earth, the land is important to us. It is all we have for the next generation. Everything depends on the land: even a fancy airplane, when it crashes, falls back to the same earth."
Rather than sending a few representatives to the trial, villagers have said they attend the trial, en masse, once a date is scheduled. "This is the problem of all of us," said one Jarai villager. "If we die, it's the whole village. Thus we want to speak with one voice. None of us will sell our land."
Legal Aid of Cambodia (LAC), a non-governmental organization (NGO), is representing the villagers in the court case. LAC is bringing the case under several laws, including violation of the criminal code for fraud and forgery of public documents.
In addition to LAC, ADHOC, Oxfam Great Britain, Human Rights Watch, and the Cambodia Office of the U.N. High Commissioner for Human Rights have actively monitored the case.
Gen. Nuon Phea is a former high ranking military official in Military Region 1, which includes Ratanakiri province. After Global Witness, an international monitoring organization, produced credible evidence of Nuon Phea's extensive involvement in illegal logging, he was transferred from his position after the February 1999 Consultative Group meeting of Cambodia's donors, in which Nuon Phea was mentioned by name. He is currently based at the Ministry of Defense in Phnom Penh, however, where he is in charge of border issues.
B. Background of the land in dispute
The land dispute covers three villages: Chet and Klik in Seun commune and Chrong in Kok commune of Bokeo district, Ratanakiri. People living in Chet and Klik villages are ethnic Tampuen, while Chrong villagers are ethnic Jarai. They have lived on the disputed land, which covers about 1250 hectares, for generations. The villagers support their livelihood by using swidden cultivation, cultivating a certain plot of land for three to five years, and then moving on to farm another plot in order to let the cultivated piece re-fertilize for about fifteen years, when it is cultivated again. Chemicals are rarely used to fertilize the soil. Several studies have concluded that this method of tilling the land is sustainable in areas such as Ratanakiri that are sparsely populated. As the population increases with immigration of lowland Cambodians, and logging and agri-business companies move in, there will be growing pressure on the indigenous minorities to limit the area under cultivation and sell off their land to outside speculators or developers. As a result, it is all the more important now to protect the rights of indigenous minorities to their land, considering the fact that the land is the basis for their existence, not only materially but culturally. If their lands are taken from them, the ethnic minorities face a serious threat to their existence. The environment will be damaged, also, due to increasing pressure on forest resources, thwarting future sustainable development options.
C. The Land Dispute
Beginning in February 1997, functionaries of Gen. Nuon Phea, working in collaboration with Bokeo district and commune officials, began titling the lands of three villages: Klik, Chrong, and Chet. The Seun Commune Secretary received instructions from District Police Chief Ting Khamsath to compile village statistics for the three villages and then to get villagers to thumbprint individual applications for land title certificates for just under five hectares per villager. (According to a 1989 decree, sales of five hectares of land and less do not need approval by the province, but can be authorized at the district level before passing to Phnom Penh's land title department for final approval.)
Villagers were told they would receive salt if they thumbprinted. If they did not, they were told that they would not have any land to live on. Since many of the villagers were not present in the village when the incident happened, others were pressured to thumbprint documents in the names of their fellow villagers.
In Chrong village, about twenty people thumbprinted, five or six doing so not only for themselves, but for dozens of others, who were working in their fields. In Chet village, about ten thumbprinted for the majority of the village. In Klik village most of the people thumbprinted for themselves. In a few cases, children thumbprinted for their parents.
"I was one of those who thumbprinted," a Tampuen from Chet village told rights workers. "I did it with all five fingers, about a hundred times."
At least 247 land titles were produced, covering at least half of the villages' land. The villagers were completely unaware that they were thumbprinting for land title certificates and that technically they had become legal owners of their land. Instead, their understanding was that their land was going to be used for a development project.
The Bokeo officials involved were Rocham Lay, the deputy governor of the district, who retired in 1999, and Ting Khamsath, the head of the district police. After pressuring the villagers to make land title certificates, Rocham Lay brought a joint application of the 247 families to the provincial land title department. Before approving the application, the land title department sent an inspection team to the site, including Ting Khamsath, to represent the district, and Nhean Sary, a soldier, who served as a representative of Nuon Phea. The land title department authorized the distribution of the land titles. The villagers, however, never saw the titles.
Later, a Sales Contract Agreement was produced, transferring the 247 land titles from the villagers to Nuon Phea. At this time villagers were forced to thumbprint the sales agreement without knowing what it was. "I was told that If I didn't thumbprint the papers, I would not have salt to eat nor any land to live on," said one villager, who thumbprinted four times. Another villager said no one dared to ask what the thumbprinting was about. "They said no thumbprint means no land to live on," said the villager, who is illiterate.
On May 1, 1997, Nuon Phea's representative, Nhean Sary, signed an agreement with Rocham Lay and Ting Khamsath that recognized the transfer of U.S. $35,000, in four installments (February 16, March 16, April 12, and May 1), to Rocham Lay, Ting Khamsath, and then-deputy district chief Len Noey. In addition, 70,000 riel (or approximately U.S. $18) was allocated to each village, with 30,000 riel provided as gifts for each village chief, and 20,000 each for each deputy village chief and chief of militia.
About a month after thumbprinting, the commune secretary hired villagers to cut and clear their own agricultural land (chamkar) around their villages. Villagers were promised 100,000 riel for every hectare they cleared; most never received the promised payment apart from one villager, who complained to the local authorities and received the full amount. Villagers became suspicious when they saw that concrete posts were being placed along the road to their village. It was then that they learned that the land had been "sold" to Gen. Nuon Phea.
Six months after the thumbprinting, the villagers all received two bags (or approximately two kilograms) of salt, per family.
D. Chronology of Events:
E. Recommendations to Donors
1. Urge the government to initiate without delay a criminal investigation into possible fraudulent acts by government officials to obtain the 1,250 hectares being contested.
2. Impress upon the government the need to address the broader problem of government officials unlawfully obtaining land or other property.
3. Support an application for legal communal land title by the villagers, as well as prompt passage of the new draft revised land law, which includes provisions ensuring the right to communal titling and ownership of land among indigenous groups. Advocate a transparent process for titling of land with a built-in appeals process.
4. Urge the Ratanakiri Provincial Land Disputes Commission, and the National Land Disputes Commission to take an active role in the case. Contact the Ratanakiri Commission through Bun Hom Ounmany, Ratanakiri second vice governor, Moung Poey, Ratanakiri province secretary general, and Dai Chhuon, deputy chief of the Provincial Land Disputes Commission.
5. Prior to application and approval of legal title for the three villages, support a technical assistance program of land-use and agricultural planning for the three villages to prevent land grabs in the future. Areas of fallow land within the villagers' customary boundaries are vulnerable to future titling or encroachment by outsiders. By helping villagers to identify areas for a sustainable and integrated mix of perennial crops, such agricultural planning can help demonstrate that the villagers are using the land.
6. Urge the government to take steps to meet the requirements of the International Covenant on Civil and Political Rights protecting minority rights, as well as articles 13 and 14 of the International Labor Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples. The ILO Convention states that governments shall recognize the rights of ownership and possession of indigenous people over the lands that they traditionally occupy, guarantee effective protection of their rights of ownership and possession, establish adequate procedures to resolve their land claims, and respect the cultures and spiritual values of indigenous peoples with the lands they occupy or otherwise use, and in particular the collective aspects of this relationship.
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