Kingdom of Cambodia
Nation Religion King
Land
Policy
”White
Paper”
Prepared by the Council for Land Policy
28th August, 2012
Table of Contents
1. INTRODUCTION.................................................................................................................. 4
1.1.History of Land
Tenure and Land Use in Cambodia............................................. 4
1.2. The Current Issues Related to Land....................................................................... 5
1.3. Land Policy or
”Land White Paper”...................................................................... 6
1.4. Constitution,
Land Law, and Civil Code................................................................ 7
2. VISION OF LAND
POLICY................................................................................................ 9
3. OBJECTIVES AND GOALS................................................................................................ 9
3.1. Objectives.................................................................................................................. 9
3.2. Goals......................................................................................................................... 10
4. THE STRATEGIES OF
LAND POLICY......................................................................... 10
4.1. Integration of Sector Policy................................................................................... 11
4.2. Coordination with Civil Society, Private Sector, and
Development Partners.. 16
5. ACTION PLAN OF LAND
POLICY................................................................................. 17
5.1. Land Administration Sub-Sector.......................................................................... 17
5.1.6. Resolution of land
dispute outside the courts....................................................... 25
5.1.7. Parcel-Based Land
Information System andthe National Spatial Data Infrastructure 26
5.1.8. Classification of
Land Types by Natural Land Characteristics............................. 28
5.2. Land Management Sub-Sector.............................................................................. 28
5.2.1. The Principles of
Land Management:.................................................................. 29
5.2.2. Tools of Land
Management:............................................................................... 30
5.2.3. Hierarchy of Spatial
Planning.............................................................................. 30
5.2.4. Development of Urban
Planning and Construction Regulations for Urban Areas. 31
5.2.5 Development of
Regulations for Rural Areasand Land Conversion...................... 31
5.2.6. Land Readjustment,
Land Consolidation, Land Sub-division.............................. 32
5.2.7. Development of
Priority Area............................................................................. 33
5.3 Land Distribution Sub-sector................................................................................. 33
5.3.1. Social Land
Concession Policy........................................................................... 34
5.3.2. Economic Concession
Policy.............................................................................. 35
5.3.3. Land Distribution
Planning, Partnership Development between Small and Large Scale Farms, and
Participation from the Private Sector.................................................................. 37
5.3.4. Policy on Illegal
Occupation over State Land in Rural and Township/Urban Areas 39
6. NATIONAL HOUSING POLICY
AND TEMPORARY SETTLEMENT.................... 41
6.1 Participation of Stakeholders in Housing Activities............................................. 42
6.2. Mechansim Arrangement...................................................................................... 42
6.3. Financial Arrangement and Financing for Housing........................................... 42
6.4. Arrangement of Housing Program for Low-and Medium-income
Households 43
7. LAND POLICY AND
INDIGENOUS PEOPLE............................................................... 44
7.1. Possession and Land Use Rights............................................................................ 45
7.2. Community Internal Rules:................................................................................... 45
7.3. Land Use Planning of IP Community................................................................... 46
8. LAND AND GENDER
POLICY........................................................................................ 46
9. LAND POLICY FOR
ARMED FORCES DEVELOPMENT ZONES.......................... 48
9.1. Policy and Actions of Military Zone Development.............................................. 48
9.2. Next Step.................................................................................................................. 49
10. ESTABLISHMENT OF
IMMOVABLE PROPERTY VALUATION SYSTEM AND TAXATION POLICY ON LAND............................................................................................ 49
10.1. Policy and Legal Framework of Immovable Property
Valuation.................... 49
10.1. Policy and Objective of Immovable Property Valuation.................................. 50
10.2. Methods for Immovable Property Valuation..................................................... 50
10.3. Requirement and Effectiveness of Immovable Property
Valuation................ 50
10.4. Current Status of Land Taxation........................................................................ 51
10.5. Implementation of Tax Rate on Immovable Property...................................... 51
11. LAND POLICY AND
CLIMATE CHANGE.................................................................. 52
12. LAND POLICY IN THE
REGIONAL AND INTERNATIONAL FRAMEWORK... 53
13. ENFORCEMENT OF LAW
AND NORM...................................................................... 53
14. CAPACITY BUILDING
AND INSTITUTIONAL COORDINATION....................... 54
15. CONCLUSION................................................................................................................... 55
1. INTRODUCTION
Land and resources in Cambodia play an important
part in serving social, economic
and political purposes. 80 percent of the Cambodia population depends on
agriculture, and favourable geographic location and natural resources for a
living. In this sense, the transparent and sustainable use of land and other
resources and the control of effective use of these resources is the key to
development. The resources do not only constitute a national heritage and can serve
the production, but can also be used as a business in the commercial sector.
Throughout the historical process and cultural evolution, these properties
reflect an individual entity, a community as well as impacts of creative ideas
of the nation. In brief, land is an essential pillar for the livelihood of the
people and national development.
1.1.History of
Land Tenure and Land Use in Cambodia
Cambodia was under continous war since the end of
1960s. This has made thenational politic regime changing all the time, and madeland
management change accordingly. Prior to
1975, land managment was based on the law andthe principle that each person
could clear forest and then declare it as their property. As the people at that
time practiced good discipline and good morality, the phenomenon arising from
land issues was minimal and small. From 1975 to 1979, the Khmer Rouge regimecompletely
demolished all types of private ownership on immovable property.
After January 07, 1979, the majority of Cambodian
survivors of the genocidal regime travelled in massto return to their hometowns
after being forced to move out ofthe cities, urban areas, or to leave their
houses in April-May 1975. On particular note, some family members who had their
health in bad conditions, unable to travel long distance, they tried hard to
temporarily settle or seeking to stay with others, so that they could find food to support their lives, of which the majority of them continued to permanently
reside on those new settlement areas.
Facing with chaos, social instability, insecurity,
and starvation, organizing local authorities to ensuresecurity and
agricultureal production are considered as an urgent work. Based onthe political situation, feeble labor
and poor means of production, the establishment ofagriculture solidarity groups
was the only way to address famine and rescue millions of people who only
possessed their bare hands. Thus, land
tenure especially farming land were in the hands of agriculture solidarity
groups of 10-20 families in one group. Step by step, land use has been
transformed to become private and the land that was used to belong to
agriculture solidarity groups were distributed to each family. Finally, the Government
of the former State of Cambodia decided courageously to offer lands and houses
occupying by the people to all families
in 1989 during whichthe socialist countries that provided assistance to
Cambodia had not yet conducted reforms in their countries. Based on the above
experience of going through the turning point of land tenure, the Land Law that
became effective in 1992 has been recognized as the foundation of the
re-establishmentof ownership regime on private land, and then Land Law 2001 was
re-developed, according to the economic and social evolution.
After the Government giving lands and houses to
people in 1989, the culture of free charge over sharing and exchanging these
properties with each other have changed, and people started to charge money.
[Property] Prices were risen up in the early of 90’s when the security in the
country was getting better, plus the inflow of Cambodians from overseas, and
the repatriation of refugees from Cambodian-Thai borders into the society. Subsequently,
the Win-Win Policy of Royal Government was set out by re-integration of KR
forces back into the society of the great Khmer families, which contributed to
full security and issuance of policies favourable to investments leading to
inflow of foreign investors; the movements of sharp prices increase of real estate
took place from 2002-2005 and was peaked in 2007-2008
1.2. The Current Issues Related to Land
The change of the property market is a positive sign
of national economy. Some people both in urban and rural areas have enjoyed the
benefits of selling some pieces of their lands when land prices are rising and
they are able to improve their family’s livelihood to a certain extent. With the
fluctuation of land market, negative activities of encroaching movement over
state forest land, reserved land for public interest, vacant and unused land
have taken place all over the country by opportunists and some of the
influential figures.
·
In rural
areas, forest land, national park land, unused reserved land of the state were
occupied by some of those powerful, influencial, and wealthy persons who colluded
with each other by clearing forest, taking state land as their own property, or
buying up pieces of lands cleared by people encroachers at lower prices with
the intention to freeze them for speculation, or hire poor people to clear the
forest for land occupation. Apart from this some poor people take the
opportunity to expand their occupation on forest boudary or moving to new
locations and continue to clear forest to get land.
·
Some
poor people in rural areas after selling out their lands by various reasons
they migrate for seasonal or permanent work in cities, urban areas. Some of
them moved on the live on puclic state land or on vacant private land. This is
one of the root case of land conflict when the state or the land owner needs
land for development or for public interests. Claims for rights over temporary
settlements in cities or in public areas are becoming more active when land
prices in cities are higher, and the situation became worst when there were not
proper solutions or lack of broad participation from stakeholders, and
espeically when there are interferences from some NGOs or unfair groups. Also,
there are extremists and opportunists with intend to reap the benefits from
these conflicts leading to social and national complexities.
·
Many
of state lands have not yet been identified and boundary poles have not been
clearly demarcated together with insufficient management measures, land
encroachment by all means have become even faster, especially from those influencial figures as well as from the rich.
On the other hand, the management of state land and natural resources by
competent institutions and all levels of local authorities who are responsible
for land managment are not smooth over how land is supposed to be managed and
over implementation.
·
Land
use planning has been delayed, epsecially the development of guidelines, legal
norms for implementation. This has led to the loss of order/discipline in city
expansion, urbanization, and changes the use of land types at will. This in
turn has made the arrangements of physical infrastructure system in some urban
areas exposed to big consequences, such as the structuring of communications
network, green spacr of public park, the loss of drainage reservoirs, the loss
of lands with agricultural potentials.etc.
1.3. Land Policy or ”Land White Paper”
The Primary Land Policy of the Royal Government of
Cambodia in 2002 or known as ”The Strategic Framework of Land Policy” has
reflected many issues concerning the 3 land sub sectors, i.e. land
administration, land management, and land distribution, and cited the roles of
the Council of Land Policy which is an inter-ministerial body to develop a
number of policies and legal norms as required by the Land Law. The Council of
Land Policy within its mandate has developed sub-sector policies and produced
draft laws, sub-decrees, and some legal norms related to land by undertaking
consultations with institutions and stakeholders. Up to now some primary
policies and legal norms related to land have been officially achieved and put
into gradual implementation, such as systematic land registration, sporadic
land registration, land dispute resolution outside court system, state land
management, granting of social land concession, economic land concession,
registration of communal land of indigenous people, management and use of
condominium, management of housing development, mortgaging, right transfer on
permanent lease or on economic land concession, granting onwership on portion
of condominium to foreigners, procedures of commune/sangkat land use planning,
spatial planning of the kingdom of Cambodia, addressing illegal holding of
state land, finding solutions to temporary constructions on state land that has
been illegally encroached and occupied in different areas of the capaital city,
cities, urban areas, etc. Also, there are some policies, such as National Housing
Policy, National Policy on Property Valuation, Policy on Land Information
System, and the drafting of rules and regulations concerning urbanization and
urban development, surveying, and mapping.
Based on the progress of socio-economic
development, the Royal Government has planned to improve and complement the
Primary Paper of Land Policy by introduing the Statement on Land Policy in
July, 2009 which is served as the ground for the development of a Comprehensive
Land Policy, or ”The Land White Paper”.
Land Policy of the Royal Government, known as ”Land White
Paper” is an analytical document of the situation of land tenure, land use, and
land and natural resources management, plus the implementation of the existing
rules and regulations pertaining to land to be responsive to the pace of
socio-economic development and to the Strategy of Staged Development to make
sure that land and natural resources managements are effective, productive, and
sustainable for later genrations.
Land Policy is a Land Reform Program of the Royal
Government which is used to strengthen land and natural resources management
that the majority of the people depends upon to sustain their livelihoods and
in generating income. Land and natural resources management would be highly effective
when integrating the needs for developing land-related sectors and other
sectors of the economy and the society in a smooth manner. If there is no
specific Land Policy and a Smooth Institutional Coordination, the
implementation of all policies and strategies of socio-economic development of
the Royal Government would expose to challenges and it would not be effective
as expected. This is because a large part of this strategy is based on the
primary sector of the economy, namely agriculture which needs to rely completly
on land and natural resources. In this context, the Land Policy or ”The Land White Paper” shall pay
attention in particular to:
·
social,
economic, cultural, and environmental aspects
·
equity and
justice to every citizen throughout the country
·
preserving
dignity and human rights
·
reducing
poverty and gender inequality
·
promoting the
implementation of measures to ensure sustainability of development
·
guaranteeing
land tenure security
·
promoting
cross-sector cooperation and multidisplinary relationship
·
enforcement of
implementing law and norms
·
respecting
custom, culture and preserving cultural heritage and history
·
increasing
participatory and transparent implementation of the land sector including land
use planning and land administration, land valuation, land taxation, land
market and so on.
·
preparedness
for trends of climate change, population growth, regional and global
integration
·
monitoring and
evaluation of implementing policy, law, norms and public dissemination of land
related information
·
strengthening
principle of good governance and implementing principle of decentralization in
the land sector including cooperation with development partners, private
sector, civil society and local community
·
capacity
building and professional training and code of conduct
As a signatory of international treaties and
conventions, especially on the implementation of the Declaration of the MDGs
concerning Human Rights, Poverty Reducation, Envrionemental Preservation and
Protection, Disaster Management, Adaptation to Climate Change, Royal Government
of Cambodia has set out many principles and measures in the land sector,
whereby line Ministries/institutions, civil societies, private sector shall
involve in achieving all objectives and goals of the Royal Government
concerning Land Management, Land Use, and Land Distribution.
1.4. Constitution,
Land Law, and Civil Code
1.4.1. Constitutions
The Constitution of the Kingdom of Cambodia under the Chapter of Economy,
Article 58 natably cites ”State property notably comprises land,
mineral resources, mountains, sea, underwater, continental shelf, coastline,
airspace, islands, rivers, canals, streams, lakes, forests, natural resources,
economic and cultural centers, bases for national defense and other facilities
determined as State property. The control, use and management of State
properties shall be determined by law.”While Article 59 specifies that “The
State shall protect the environment and balance of abundant natural resources
and establish a precise plan of management of land, water, climate, air,
geology, ecological system, mines, energy, petrol and gas, rocks and sand,
gems, forests and forest by-products, wildlife, fish and aquatic resources.”
Concerning the rights and duties of the Cambodian citizens,
Article 44 of the Constitution stipulates that “All persons, individually or
collectively, shall have the right to ownership. Onlyphysical or legal person
of Khmer nationality shall the right to own land. Legal private ownership shall
be protected by the law. (Whereby) possessions of any person shall be only
withdrawn unless it is required for public interest as provided for under law
and shall require fair and just compensation in advance.”
1.4.2.
Land Law
The 2001 Land Law which is totally based on the Constitution
and the change of ownership regime and the actual situation of land tenure. Article
6 of the Land Law specified that “Only legal possession can lead to
ownership. The State may also provide to natural persons or legal entities of
Khmer nationality ownership over immovable property belonging to the State
within the strict limits set forth in this law.” In terms of Acquisition of
Ownership, this law stated that “Possession of immovable property which was
recognized since 1989 may constitute a right in rem over immovable property and
lead to the acquisition of ownership by the holder, in accordance with the
conditions set by this law.” Article 38 says “In order to transform into
ownership of immovable property, the possession shall be unambiguous, non-violent,
notorious to public, continuous and in good faith.” In brief, a legal
possession which can transform into ownership shall be a possession which
conforms to the five abovementioned conditions and occurred prior to the
effective date of the 2001 land law on a piece of land which is not partial to
state public land and have stayed there for five years.
Article 226 of the Land Law states “Ownership
of immovable property shall be guaranteed by the State. For that purpose, the
Cadastral Administration under the supervision of the Ministry of Land
Management, Urban Planning and Construction shall have the competence to
identify properties, establish cadastral index maps, issue ownership titles,
register lands and inform all persons as to the status of a parcel of land in
relation with its nature, size, owner and any relevant encumbrances over such
parcel.”
This Law also mentions the procurement of
ownership about public and private ownership, types and forms of ownership,
most of which states the details and are included in the Civil Code 2007.
Properties
that are considered as public properties of the State or of public legal
entities, Article 15 of the Land Law has divided them into 7 categories,
namely:
- Any property that shows their existence naturally
- Any property that is subject to special
development for common interest
- Any property that is made available for public
use either in its natural state or after development
- Any property that is put into use for public
service
- Any property that constitutes a natural reserve
protected territory by law
- Archeological. Cultural and historical
patrimonies
- Immovable properties being royal properties
that are not private properties of the royal family. Royal immovable properties
are managed by the King under throne.
Moreover, Article 4 of the Sub-decree No. 118 on
the Management of State Land additionally specifies State Public Properties as
other lands having their nature to serving public interests and those lands
that have already been identified by legal basis.
Article 16 of the Land Law says “State public
property is inalienable and ownership of those properties is not subject to
prescription…However, it can be subject of authorization to temporarily,
precariously occupy or use and revocable if failed to fulfill tax obligations,
except it is authorized under Chapter 3 of the Law. These authorizations cannot
be transformed into ownership or rights in rem for the benefit of the holder.
When State public properties lose their public interest use, they can be listed
as State private properties by the Law on Transferring of State public property
to state private property.”
Concerning state private property and public
legal entities, Article 17 of the Law clearly specifies that they can be
subject of sale, exchange, distribution or transfer of rights as determined by
law. Such property may
be leased out and it may be the subject of any contract made properly according
to the law. However, vacant
lands of the State private domain may be distributed to persons demonstrating
need for land for social purposes in accordance with conditions set forth by
sub-decree.
1.4.3. Civil Code
Civil Code is a basic law sets forth the general
principles governing legal relations in civil matters and shall apply to
property related matters and family relations. The Civil Code was adopted in
2007 and became effective in December of 2012. Therefore, the section
concerning the rights and obligations of individuals pertaining to immovable
property as stated in 2001 Land Law shall follow the substance that is detailed
in the Civil Code. Nevertheless, the two laws preserve the definition of
immovable property management that had been applied so far by requiring
immovable registration be registered in the Land Register Book.
Land Management or Administration in Cambodia shall
comply with the system of land registration in the Land Register Book at the
Cadastral Administration of the Ministry of Land Management, Urban Planning and
Construction. This system is unlike those implementing in some countries that
apply recording system in which the creation, transfer and alteration of real
rights shall take effect in accordance with agreements between the parties
concerned without having to register in the Land Register Book . Hence, even
though Article133 of the Civil Code specifies that the Creation, transfer and
alteration of real right shall take effect in accordance with those agreed upon
between the parties. However, Article 135 of the law cited that Notwithstanding
Article 133 (Creation, transfer, and alteration of real right by agreement) and
134 (Conditions for the
Establishment, the Transfer, and the Alteration of Real Right with Agreement),
the transfer of ownership over an immovable with agreement is not effective if
failed to register in compliance with the provisions of other laws and
ordinances regarding registration.
In general, the 2007 Civil Code has written in
details Real Rights, Ownership, Ownership Acquisition, Undividable Ownership,
Half-right, tenure, Permanent lease Right, Usufruct, Right to Use, Servitude
Right, and obligations related to the right use,…etc. within which these
chapters are drawn from 2001 Land Law.
2. VISION
OF LAND POLICY
With the objectives to develop the economy and the
society to move out of poverty by 2030 and to become a developed country by
2050, the Royal Government of Cambodia has specifies that the Vision of Land
Policy is Land Management, Land Use Planning, and Land Distribution in an
Equitable, Transparent, Effective, and Sustainable Manner in order to achieve
the National Goals on Poverty Reduction, Food Security, Environmental
Protection, and Natural Resources, National Defense, and Socio-economic
Development in the context of Market Economy. Hence, the contribution of
the land sector through the Land White Paper and improvement of
people’s living standards as well as to achieve the Millennium Development
Goals would substantially contribute to keeping stability, social order, social
and political security. Under this perception, ministries concerned in
managing, using land and natural resources shall take part actively in
implementing the National Strategy for Poverty Reduction by starting from the
agricultural sector to move the nation to become a developed country within the
next 30 or 40 years.
3. OBJECTIVES AND GOALS
3.1. Objectives
The vision of the Land Policy of the Royal Government is
the compass to determine the objectives and the goals of land management, land
use, and land distribution. En this regard, the objectives of Land Policy is to
facilitate the use and management of land and natural resources for
socio-economic development in an equitable and sustainable manner by:
-
strengthening
security of land tenure to ensure confidence and efficiency of land markets;
-
guaranteeing the
management, protection, and use of land and natural resources in a transparent
and effective manner in order to insure equity of socio-economic development
both in rural and urban areas, and to maintain environmental sustainability and
prevent disputes on land use;
- providing a clear direction in transparent
and equitable distribution and use of state land for public and private
purposes.
3.2. Goals
As land is a cross cutting issue and the management and use of land
by public and
private
institutions and entities still entail many challenges, the Royal Government
has established the Council for Land Policy as an inter-ministerial mechanism
for facilitating and monitoring the implementation of laws, sub-decrees, rules
and regulations pertaining to land aiming to reform the land sector which is
responsive to the National Strategy for Poverty Reduction and the assurance of
food security, national defense, and gender equality
The goals of the land policy to be achieved in the near
future are:
- to clearly and quickly register ownership and other
rights over immoveable properties (state and private) and cooperate in
conducting official transfer of those rights
- to prevent and resolve land disputes out of court, for
the land which has not been registered in a Land Register Book
- to establish an inventory of state immoveable properties,
attached with the cadastral index map for the formulation of state land
database system
- to develop land information system (LIS) as a basis for
National Spatial Data Infrastrcuture and for multi-purpose use
- to develop a participatory, transparent and officially
recognized Land Valuation System for public and private purposes
- to study and establish geology information system and
soil classification based on natural characteristic of land to utilize the land
potential in an appropripate, effective and sustainable way
- to develop national policy and legal framework as well as
appropriate procedures for land development management in rural and urban areas
including land used for agriculture, construction and resettlement
- to foster national spatial planning and sub-national land
use planning for priority areas for zoning and preventing land conversion or
land use which damages land potential
- to develop and implement medium and long-term strategies
and frameworks of land distribution for social and economic purposes
- to implement partnership between small and large-scale
plantation holders or between an economic land concessionaire, small
landholders and social land concessionnaires through a agricultural production
contract and other options
- to enform the implementation of existing law and norms
and develop policy and legal framework for land management and use, according
to the evolution of national situation.
4. THE
STRATEGIES OF LAND POLICY
The Strategies of Land Reform of the Royal Government are
(1) to monitor and strengthen the implementation of laws, rules and regulations
pertaining to land activities at the ministerial, institutional and
sub-national levels. In line with the Principles of Decentralization and
De-concentration, the sub-national level is obliged to update the data on all
land parcels which are under their jurisdiction, and to lead the consultation
over local land use plan for socio-economic development purposes, (2) prepare
sector-based policy, so that laws and legal procedures concerning land can be
formulated or supplemented if necessary to be responsive to short, medium, and
long-term socio-economic development, and (3) drawing lesson learned and
improve or amend the legislations, rules and regulations to make sure that they
are smooth and well fit one another.
4.1. Integration of Sector Policy
Land
plays its crucial role in serving human existence and development. To achieve
the objective and the goal of poverty reduction while at the same time ensuring
food security, the integration of policies at the ministerial/institutional
levels and of those concerned stakeholders is necessary. Therefore, in
formulating a land policy which is embedded with cross-sectoral character requires
the participation of all institutions in a responsible spirit of each sector:
Water
Resource Management
As
80% of the Cambodian population is farmers, water quality protection,
development of irrigation system to be in line with the principle of environmental
protection, flood and drought prevention is a key strategy.
The Law on Water Resource Management
2007 has determined the rights and the obligations of water users, basic
principles for managing water resources and the participation of water user
communities for sustainable development of water resources. Article 6 of the
Law has mandated the Ministry of Water Resources and Meteorology to determine
the policy to manage, conserve, and develop water resources well in line with
the needs of each region throughout the Kingdom of Cambodia with the objective
to ensure the sustainability and efficiency of water use, so that risks and
disputes can be avoided. On the other hand, Chapter 7 on Protection of
Flood and Drought, the Law also specifies in its Article 24 that For flood
prevention, the Ministry of Water Resources and Meteorology, in collaboration
with line institutions and local authorities, can declare low land areas as the
areas for absorbing flooding water. In the areas for flood prevention, the
Ministry together with concerned local authorities shall develop a plan on
measures to prevent and monitor flood, so that human, animal lives and
properties can be assured…
Royal Government of Cambodia has
considered agricultural sector as the core for development. Equitable and
effective land management, use and distribution is basically linked with
development of irrigation system, knowledge transfer and agricultural
technigues, refining of agricultural products, and provision of market
information of agricultural products in order to improve the living conditions
of the people and social equity. In this context, protection of water quality,
development of irrigation system and supply network in compliance with
environmental protection and provention of flood and drought is a key strategy
of poverty reduction and the guarantee of food security. The system of the
Mekong river basin where 90% of the population are living is the plain areas
which are vulnerable to severe flooding if there is the co-existence with the
continual rainfall from the river basin on upper stream. Hence, notification of
information on natural disaster, the preparation of measures to counter and
prevent flood and the monitoring of areas which are prone to floods is the main
agenda connecting to land policy in which the relevant instititions shall
cooperate in developing a strategy and a development project in the national
and international framework.
Tourism,
Heritage and Natural Resources
Cambodia is the oldest country in
Indo-China peninsula. The country is abundant of historical heritage and
culture. These are crucial endowment which helps boosting the potentials of
tourism. The sector has actively contributed to socio-economic development, job
creation, improvement of people’s livelihood, and poverty reduction. With the
objective to increase up to 4.5 million tourists by 2015, and 7 million by
2020, additional development of physical infrastructure, development and
strengthening of production facilities and supply of quality foods, human
resource development, promotion of tourism service and strengthening public
security are required.
Main tourism areas which shall be
managed and developed as the connected market network consist of:
-
Angkor Area and
Areas surrounding Angkor is the first pole which attracts cultural and natural
tourism. This area links Angkor to cultural heritages and Tonle Sap lake
including áž…ុងឃ្áž“ៀស and some parts of Tonle Sap.
-
Phnom Penh
capital and the surrounding area is the heart and centre of politic, commerce,
culture and tourism, which collects altogether the prestigious properties,
construction and architecture throughtout the history.
-
Coastal area is
located in the south-western tourism corridor, involving 04 provinces.
Cambodia’s beach became a
member of Sea Beach Club which is cleanest on the world in May 2011 thanks to
the abundance of biodiversity, the luxury of natural environment,
socio-economic, cultural and traditional value of ecology in the region, and an
area for tourist attraction. Development
planning to preserve the luxury of the beach areas requires involvement of
concerned ministries/institutions and sub-national authorities plus local
people and communities. This area is an economic corridor that links Vietnam
and Thailand and is also extended to Phnom Penh capital.
-
North-eastern
area has potentials for eco-tourism, thanks to the cultural endowment and
natural resources, especially culture, tradition and way of life of indigenous
people and natural scenery of the plateau. This area is one of the priority
poles in the framework of triangular development cooperation between Cambodia,
Vietnam and Laos.
-
Areas surrounding
Tonle Sap lake connects the provinces surrounding Tonle Sap lake of high
population density and with good infrastructure including waterway, roads and
air traffic. This area attracts tourism because of the diversity of tourism
products such as cruise, sightseeing of a floating village, temple towers along
the national road, Khmer traditional houses, architecture buildings, tourist
destinations in a valley, and traditional craftwork. Besides, the area along
Mekong and Basac rivers where the population density is high also has a lot of
potential for cultural and eco-tourism.
Ministry of Tourism has
developed a Strategic Development Plan 2010-2020;
by September 04, 2012, Royal
Government of Cambodia has achieved medium-and long-term plan focussin mainly
on the national and international education of human resources for tourism
sector, either public sector, private sector or the local people and on the
training of tour guides, tourism professionals, and on cooperation in the
framework of ASEAN.
The formulation of a detailed action
plan of the tourism sector shall pay attention to the promotion of tourism
service, development of basic supply of quality food, environmental
conservation at the area of cultural and historical heritage, coastal area,
tourist destinations and preservation of national tradition and custom, aiming
to absorb the interest of the tourism growth.
Concerning coastal area management,
instructional circular 01 on development of coastal area of Kingdom of Cambodia
instructs the Ministry, relevant institutions and sub-national administration
to implement principles of management, use, preservation, protection and
development in accordance with the dertermination of each area: (a). the coast from the sea
water line to the water line prohibited from occupation (b) coastal corridor
land (c). public road along the coastal corridor land (d) satellite area along
the public road (e) public road, sidewalk, a garden or green area extending to
a beach (f) an arm of sea, tributary, creek, waterways connected to the sea (g)
territorial sea and (h) development and construction in the coastal area.
Forest
Management
For
forest management, there has been introduction of the idea with regard to
forest management by people’s community in compliance with the general trends
of South-East Asian region. On part of Cambodian citizen who are living under
the poverty line and totally dependent on natural resources which are depleting
both on quantity and quality. The pace of loss of forest covered land between
2002 and 2010 was about 0.50 percent per year. Such a depletion has damaged the
habitats of bio-diversity, the abundance of forest resources, and consumption
in the future, and this might lead to erosion of land surface which is fertile
to cover low land areas, and the upper stream would bring sand and gravel to
cover agricultural land in the downstream areas in subsequent years making land
quality declined or no longer productive as they used to. Therefore, if there
are no effective prevention measures, this would make land less fertile
(deficit?) including low land areas and eventually, land would be completely
dead. Managing natural resources, especially plant covers for protecting
bio-diversity shall accompany with measures for sustainable use and management.
The
Law on Forestry defines that forest estates consists of Permanent Forest
Reserves and Private Forests. Permanent Forest Reserves consist of three
categories, (1) Production Forests shall be maintained for the
production [of forest products], by-products, such as forest concessions,
production forests not under concession, to-be rehabilitated forest or forest
for regeneration, degraded forestland, community forests; (2) Protected
Forests shall be maintained primarily for protection of the forest
ecosystems and natural resources, such as forest for research, forest for
regulating water sources or for watershed protection, forests for recreation,
forests for religious events that can be permitted to customary harvest forest
by-products, and (3) Forestland for Conversion for other development
purposes is idled land, comprised secondary vegetation, not yet designated for
use by any sector. Article 15 of the Law specifies that Concessionnaires
shall have the right to manage and conduct Forest Products and By-products
harvesting operations within ther concession, while ensuring that the operation
deos not interfere with 1) Customary use rights taking place on land property
of indigenous community that is registered with the state consistent with the
Land Law, 2) Customary access and user rights practiced by communities residing
within, or adjacent to forest concessions. These are challenges when the
lands of indigenous people have not yet been identified and registered as
collective communal properties and the confirmation over customary forest use
of indigenous people has not been clearly determined.
Environment
and Natural Proected Areas
Article
11 of the Law on Protected Areas defines each protected area shall be divided
into 4 management zones,1) Core Zonebeing the
management areas of high value for conserving endangered species of animals,
rare vegetation, which are under threat and are of fragile ecosystems. Access
to the zone is prohibited, except the Nature Conservation and Protection
Administration’s officials and researchers who received prior authorization
from the Ministry of Environment, 2) Conservation Zonebeing the
zone which is located adjacent to the Core Zone having conservation value in
terms of natural resources, ecosystems, watershed areas, and areas of natural
landscape…the consumption of natural by-products within the zone for local
communities and indigenous people that would not present serious impact on
biodiversity shall be under strict control the Nature Conservation and
Protection Administration, 3) Sustainable Use Zone being
management areas of high economic values serving economic development and
contributing to the livelihood of local communal people and indigenous
people…and 4) Community Zone being management areas serving
socio-economic development of indigenous communities and people whose
activities have already taken place, including residences, paddy fields, and
chamcar.
Under
the Chapter on Authorization, Prohibition, and Environmental and Social Impact
Assessment, this Law offers the rights to the Minister of Environment to
issue permits, agreements, or contracts with no profit orientation in the
conservation and management of natural resources in natural protected areas,
but Article 36 specifies that All clearances, bulldozing forestland in
natural protected areas for constructing and developing all kinds of public
infrastructure through the Core and Conservation Zones are prohibited. In
addition, Articles 42, 43 have prohibited the processing of natural
resource products and by-products, the installation and the operation of
sawmill, wood processing plant, handicraft for processing natural resource
products and by-products, and all kinds of kilns in natural protected areas. No
physical person or any individual shall have the rights to authorize forest
clearing for land holding, tree cutting, catching all kinds of wild animals
either directly or indirectly, nor making all kinds of activities to harvest
forest by-products, natural resources in natural protected areas which
contradicts to the provisions of this Law.
In
the past when dealing with natural resource management in natural protected
areas, MOE had issued not for profit permits under forms of agreements or
contracts (with?) to investors for natural resource conservation and
management. In reality, however, investors had bulldozing land in protected
areas for cultivating agro-industrial crops or constructing production
facilities which are not in line with the principle of natural resource
management. This not only affects genetics and ecosystems leading to losing the
sources of land resources for food production and affecting severely on mixed
bio-diversities, in turn, leading to negative impact on the environment.
Climate
change or global warming will cause heat waves, drought, soil infertitlity,
melting of ice caps, increasing sea level, floods and so on. In order to slow
down the climate change, it is necessary to manage the use of natural resources
for environmental sustainability, of technology which does not pollute the
environment to protect water quality, land quality, air quality, and
preservation of the ecological system, food security and the promotion of
public health.
Strategic
plan aimed at reduction and prevention of environmental pollution and
preservation of the ecological system safety will contribute to poverty
reduction, promotion of public health and protection of global sustainability.
Managing
Agricultural Land
Concerning
the management of agricultural land, there has not been any attention to
conduct an in-depth research and development yet as on the one hand, the
resources for this work is limited, and on the other, attention tends to focus
on technical development of cultivation and increase production. Used and
unused agricultural lands are exposed to land conversion to other purposes and
farming land received little protection, unavoidably, leading to productive
land loss for food production. The authorities who are managing agricultural
land shall collaborate with concerned institutions to come up with land use
plan, so that guidelines pertaining to activities of agricultural land
governance can ensure effective and sustainable land management.
Land Use
for Development of Transport Infrastructure
Royal
Government places emphasis on the restoration of existing transport
infrastructure and construction of new infrastructure in response to the needs
of socio-economic development. Transport infrastructure such as roads, bridges,
ferries, railways, waterways, ports, loading bay, goods warehouse, and an
airport are developed into a convenient and safe transportation system linking
the rural areas throughout the country to the city, urban areas, tourist
destinations and facilitating the transport or exchange of agricultural
products, industry, and tourism, which can contribute to the increasing job
opportunities, income for the people. This can be also linked with the
neighbouring countries in the region and the world.
The
population and economic growth and trade exchange encourages the increased use
of transport means and additional roads, and the traffic safety becomes a
concern. The road expansion division of road furrow, and posting of traffic
signs need to be handled, and the traffic discipline shall be enforced to
prevent or reduce the traffic accidents. Therefore, the construction firms of a
house, a road or a bridge shall undertake a strict study and take measures
dividing the road for cars, motorbikes, and constructing infrastructure for
pedestrians, crossroads, bridges for pedestrians, a pavement, and a car park,
in order to avoid traffic congestion and accidents.
The
Royal Government of Cambodia has adopted the approval law on Annex 11, norms or
scale, standardand specifications for implementing the agreement between Greater
Mekong Sub-region (GMS) in 2006 and the approval law on Protocol 1 of ASEAN on designation
of transit transport routes and facilities for implementing ASEAN Framework Agreement
on facilitation of goods in transit in 2008 and also has enacted the approval
law on bilateral agreement and trilateral agreement on by-land transport with
neighbouring countries continuously. The
cross-border transport in the bilateral form, trilateral form (CLV), GMS, and
ASEAN requires each country to determine the road network, bridges, for transporation
vehicles and passengers crossing the border and each signatory country to
build infrastructure such as roads, bridges, a bus stop, arterial roads, in
compliance with norms or scale, standard and specificifcations as determined in
the Protocol and the Annex of the Agreement.
Generally,
railway is considered as important means of transport in serving the social and
economic purposes, and contributes to poverty reduction. Cambodia has two
railway routes: north-western route from Phnom Penh to Poipet is 386 km long
and south-western route from Phnom Penh to Sihanoukville is 466 km long. These
two railway routes were seriously destroyed by war, and the transit route from
Sisophon to Poipet, with the length of 48 km is completely cut off by people
constructing solid houses on the site. In February, 2008, Royal Government of
Cambodia began to restore the two railway routes in order to facilitate
domestic transport and link with the transit transport between Cambodia and
Thailand and for Asian railway route from Singapore to Kunming by linking
Singapore, Malaysia and Thailand crossing Cambodia toward Vietnam and extends
towards China. Therefore, in order to link ASEAN-Kunming railway route,
Cambodia shall construct a new railway route of 255 km long from Bat Doeng
station to Lok Ninh station, Vietnam, and the master development plan is under
study.
Waterways
and ports also play an important role in promoting all kinds of commercial
activities for national and international economic development. Issuance of the
open-sky policy makes Cambodia obtain continuous and new investment from the
private sector on the port sector.
Besides
the restoration and development of the transport infrastructure, the Royal
Government has been considering the development of infrastructure related to
dumping solid and liquid waste in such big cities as Phnom Penh, Sihanouville,
Siem Reap, and Poipet by restoring or constructing new sewage system and a
station for filtering dirty water, sewer system to avoid the flood caused by
rainfall in a city and urban areas. Construction of new transport
infrastructure, expansion of transportation network, construction of a station for filtering dirty water, a new
port and so on are connected to the land use plan. Therefore, the sub-national
authority shall strenghthen the implementation of existing norms and shall promote
the establishment of the nationwide master transport infrastructure development
plan to be linked with the need of land use to reserve and protect land for
sustainable development in the future.
4.2. Coordination with Civil Society, Private Sector, and
Development Partners
Land
tenure and land use are inter-connected to all levels of population. To
coordinate land use, RGC established a council for land policy comprising of 22
Ministries/institutions to initiate and propose to the Supreme Council for
State Reform a plan, a programme and strategy to achieve the goal of land
management, use and distribution and monitor the implementation of Land Policy
and Programmes. In its mission and duties, CLP has developed policies and legal
framework for implementation and coordinate the land management, use and
distribution in a transparent and equitable manner. However, in the process of
land, there are economic or political interest groups who involve in land
exploitation. Of which, a small portion can be caused by the lack of
understanding of legal norms pertaining to land, or it is because of limited
communications between public and private sector, civil society and development
partner.
To ensure a harmonized development,
it is compulsory to clearly define the relationship between public and private
sectors. For land activities, land policy shall also define to cooperation
between state and non-state (development partners, private sector, and civil
societies) this is to provide more effective services and to build the culture
of partnership and exchange of ideas. Hence, state institutions should increase
their communication and cooperation with development partners, increase more
consultations with civil societies, and coordinate with the private sector
aiming to speed up and identify an appropriate solution which is acceptable to
stakeholders through regular discussion and dissemination of the information on
the implementation of existing policy, rules and regulations within the context
of Cambodian economy.
The Private sector
including banking system and micro-finance sector is the main partner who contributes to national and local community
development through different aspects by cooperating with the state and/or
communities directly in formulating investment projects for land development,
initiating agro-industry projects on economic concessional lands, financing
projects for job creation or occupation expansion, housing development
projects, favorable on-site development projects in unorganized areas, physical
architectural projects, and local services etc. Due to limited knowledge of the
people on economic sector, attraction and good cooperation with the private
sector in market economy context shall fall under the framework of equitable
distribution of benefits among investors, community citizens, and the state.
So, it is necessary that the State shall intervene to a certain extent (for
example, in contracting, training, making specific information available) to
make sure that these cooperation not turn out to be the means for exploitation
over people’s poverty. The development of public private partnership is a big
step, but the people participation is still slow, yet the partnership requires
the participation from the State on the development of legal norms and
coordination.
Civil Society being a partner assisting RGC in implementing policies for social
development, implementing citizen’s rights and obligations within national
legal framework. Under such a task, civil society shall participate in
providing education, training to communities to be familiar of how they can
develop themselves by participating in decision making, community development
planning, effective and sustainable productivity of land use, providing means,
techniques, tools which can improve people’s livelihood, initiating savings
schemes for community development, involving in the process of studying and
addressing temporary housing with inter-institutional working group to come up
with appropriate plan for implementation.
Development
Partners through international
development agencies, bilateral or multilateral, they have their missions to
help developing socio-economy of less developing countries by offering
experiences, techniques, and funding aiming to reduce poverty and ensure food
security. The contribution of development partners in the land sector is
critically important and cannot be lacked of because the land sector has not
been paid high attention to since Cambodia was under French protectorate, also
because of limited experiences and technical knowledge of us after the
re-introduction of land ownership regime in 1989.
The cooperation with development partners in the past has contributed to
the development of basic foundation of land administration, land management,
and land distribution. In this context, furthering the cooperation in
disseminating information and exchanging experiences on land issues with
development partners will contribute to the betterment of the situation of land
management and land use following the regional and global trends.
5. ACTION PLAN OF LAND POLICY
Land management in Cambodia would face severe
consequences as all land related documents were destroyed during the Khmer
Rouge regime. When land market started to take off, the phenomenon of state
land encroachment, competition for land occupation, and land disputes began to
take place subsequently, and this phenomenon would stay there for a long period
of time if land tenure is not entirely secured by laws. On the other hand, the
delay of identification of zoning and land use planning in areas of economic
potentials and in some urban areas/cities making development activities
un-smooth. Facing with these issues, action plan of land policy by each
sub-sector shall consist of clear goals as follows:
5.1. Land Administration Sub-Sector
With the objective to strengthen the security
of land tenure, the Cadaster Administration shall push for clear ownership
registration and the registration of other rights on all immovable properties
and to officially transfer the rights attached to those properties in order to
prevent and address land disputes, and to guarantee gains over trust and
efficiency of land market.
5.1.1 Framework of Land Tenure
Relating to the right over land tenure, the
Land Law as well as the Civil Code each has defined the types of ownership on
immovable properties and other types of rights over land tenure, such as:
Ownership
refers to the exclusive rights of the owner to use and the right to usufruct to
dispose or transfer to others, and transform [his/her] immovable property shall
subject to the conditions of applicable laws. Land tenure which was existed
from 1979 and before the introduction of the land law in 2001 has been
recognized as land possession which can be converted into ownership if they are
legal possessor, i.e. they entered to occupy the land prior to August 2001
without violence, notorious to the public, no actual discontinuation nor
abandonment and in good faith, and that land is not partial to any land
associated with public interests.
Therefore, if such a legal possession has been fulfilled over a period
of 5 years, the possessor can request for registration of their property at the
Cadaster Administration in the Land Register Book, and to acquire a land title
over the property in question.
Individual
Ownership refers to
the ownership which is managed by one person being physical or legal person ( a
private company of Khmer nationality, private association or organizations
having officially registered). Whereas ownership of several individual persons
over the whole property with solidarity is considered as undivided ownership.
Co-ownership occurs when many people exercise their
exlusive private ownership on certain sections of a property, and other
sections are commonly used. Co-owners shall have their full rights to transfer,
rent/mortgage, or deposit as hypotheque their own individual sections without
abusing or causing any disruption to the common section to other co-owners.
Public
Ownership refers to
state or collective ownership of any public territory, public establishments or
legal person of public law, including public and private state properties.
Public state properties are properties that cannot be sold nor prescribed.
However, when those properties lose their public interest, they can then be
considered as state private properties based on the Law on State Land Reclassfication
for any concession purposes. State land transformation is land
re-classification from public state land into private state land which is
possible when all necessary documents are attached to it, including but not
limited to the location of the land, boundaries with specific coordinates,
assessment of the loss of public benefits attached to the land, and also with
participation of all parties concerned.
As there is no Law on State Land Transformation at the moment, land
re-classification can be made by way of Sub-decree in compliance with the Royal
Decree. Whereas the private state land is reclassified as public state land,
Sub-decree can be automatically applied.
Collective-ownership is referred to as a form of joint
ownership of several individuals each of whom possesses their privileges over
that property such as ownership on monastry and ownership that belongs to
indigenous people. Ownership on monastry that is put into use by Buddhist
followers under care of monastry committee cannot be sold nor donated, and
isnot subject to prescription. With regard to communal ownership of indigenous people, one part is state private
land where the communities have built their residences on and the actual
cultivating land, another part is state public land, such as land for
traditional agriculture ( reserved lands for crop shifting), spirit forestland,
and land for graveyards.
Ownership is real and top rights over immovable
property. Besides ownership rights there are other real rights over immovable
property such as possession
rights, real rights to use and enjoy the benefits as well as real
security rights. Real rights to use and enjoy the benefits include, but not
limited to usufruct right, permanent renting right, use and habitation
rights, and easement. As for real security right for debt owner guarantee,
the right to freeze [it] by the courts, privilege is the right to get repayment
prior to the rest of other lenders, right over mortgaging, depositing
hypotheque, and the right on collateral transfer which is the transfer of
guarantee right to other person(s). However, the rights of an owner over
immovable property are always binding to their obligations with some right
limitation imposed on that property.
Following the rules
of land use, in the circumstance that the 2001 Land Law fails to specify in
details, these rights might be limited on the ground of public interests or to
integrate those interests into certain areas or timing, such as the right on
land in dry season in the area sourrounding Tonle Sap lake and in other natural
lakes, on low land areas and watershed of Mekong river banks, ownership right
on a property by multiple persons allocated for a definite timeframe (Time
share ownership)...etc.
5.1.2. Land Registration
Legal Basis of Land Registration
Article
3 of the Land Law in 2001 stated that ”All persons shall respect the
property of the State and legally acquired private property. The management of
the cadastral administration of immovable property belonging to the State and
the competence to issue titles related to immovable property throughout the
Kingdom of Cambodia are under the Ministry of Land Management, Urban Planning
and Construction..”In addition to that, Article 226 specified that Ownership
of immovable property shall be guaranteed by the State...the Cadastral
Administration of the Ministry of Land Management, Urban Planning and
Construction shall have the competence to identify properties, establish
cadastral index maps, register land parcels, issue ownership titles, and inform
all persons as to the status of a parcel of land in relation with its nature,
size, owner and any relevant encumbrances over such parcel.
Land Management or Administration in the Kingdom
Cambodia shall comply with the system of land registration in the Land Register
Book at the Cadastral Administration of the Ministry of Land Management, Urban
Planning and Construction. This system is unlike those implementing in some
countries that apply recording system, i.e., the creation, transfer and
alternation of real rights shall take effect in accordance with agreements
between the parties concerned. Hence, even though Article133 of the Civil Code
specifies about the Creation, transfer and alternation of real rights by
agreement, Article 135 of the Code prescribes that transfer of title by
agreement pertaining to an immovable shall not come into effect if failed to
register in accordance with the provisions of the laws and other ordinances
regarding registration. Land registration is a mean for proper certification of
the rights of an occupant over a land parcel in which the identity of the
property owners and the location of the immovable property are recorded. The
registration of land parcel would strengthen land tenure security and
contributing to the prevention and resolution of land dispute, improving trust
over their rights one has on each land parcel.
As all the
documents pertaining to land were lost, re-registration of immovable property
is key in property management of a nation, including state and private
properties. The current land registration is based on legal possession right
that people have actually occupied and used in compliance with the Sub-Decree No. 46ANK.BK., dated May 31, 2002 on the
Procedures of establishment of Cadastral Index Map and Land Register or
Systematic Land Registration or in compliance with the Sub-Decree No.48
ANK.BK., dated May 31, 2002 on Sporadic Land Registration as per request lodged
by the individual who is the right owner. Land and the process of land
registration is transparent which requires a participatory process in
determining the location and the boundaries of land parcel from those who
declare that they are the owner of an immovable property with agreement from
their neighbors plus public display of the data that has been collected for a
duration of 30 days for public complaints. Those immovable properties that are
subject to registration are based on the data of those who claim to be the
owners of the property that could be joint-property between husband and wife,
or separate property which belongs to husband or wife.
Status and Issues of Land Registration
So far,
the Cadastral Administration of MLMUPC has made efforts in speeding up land
registration as much as it could. They use modern techniques for surveying land
parcels and enter the data into the Land Register Book, then issue land titles
to the people. It is estimated that throughout the country, there are about 10
million private land parcels, meaning that many more years is required.
Therefore, in order to increase the speed of land registration, MLMUPC has used
sophisticated survey tools with high precisions to provide coordinates of all
land parcels which are located adjacent to each other in each area. This would
make survey time of all land parcels shorter, and at the same time the Ministry
has considered other appropriate options that would speed up more the pace of
land registration, such as increasing the number of field teams with their current
active operations, allowing small-scale land surveyors to do their jobs in
adjudicating areas where a dozen of adjacent land parcels are located as per
requests by land owners, forming partnership between public and private sectors
for systematic land registration by granting land surveying licenses under form
of contract with the private sector under the administration and decision by the
Cadastral Administration…etc.
Some Challenges of Land Registration
·
Some people who are possessors do not have sufficient
documents to prove that they are legal possessors due to losses.
·
Participation possessors and institutions which
are mandated is limited.
·
Resolution of land disputes in adjudicated areas
is slow and tends to pile up.
·
Lack of certainty for registration of those land
parcels in flooding areas during rainy season in Tonle Sap areas
·
In carrying out the registration of private
sections of a condominium, there is lack of basic documents from possessors.
Nonetheless, the
speeding up of land registration Immovable property related data is an
important economic tool which would support social sector, politics, and is the
ground for national development planning.
Special
Measures of Land Registration
In June
2012 when exposed to unclear status of forestland holding and land conflict in
some areas between citizens and ELC companies which rendered concessionaires
unable to pursue their development projects as planned, the Head of RGC took a
decision to take actions to strengthen and increase the efficiency of ELC’s
management by issuing Order No. 01 BB, dated May 7, 2012 aiming to implement
the policy and conditions of the decision of RGC on granting ELC, using tiger
skin land registration policy without impacting on community land and people’s livelihood,
and to temporarily postpone new granting of ELC. This is to strengthen the
implementation of the existing policy, rules and regulations through the
development of concrete program and activities for implementation under direct
monitoring of the Head of RGC. To implement Order No. 01,
SamdechAkkaMohaSenaPaddeiTecho Hun Sen has formed a Supervisory Committee to
oversight the implementation of existing policy by new action with regard to
land reform which is led by MLMUPC who shall supervise and submit their
recommendations to the Prime Minister for approvals on the requests to cut off
lands from forest concessions, ELC, and state land for distributing to those
people who have obviously occupied the lands. This is a big land reform that
has been paid attention directly by the Prime Minister, using all means and
total forces, both specialized officials and youth volunteers to identify lands
as well as occupants who are using actual lands, so that these portions of
those lands can be cut off from state land, then transfer, and donate to the
citizens being the producers by granting land titles to them. The land reform
campaign with the scope which covers 21 provinces among 24 municipalities and
provinces in the Kingdom of Cambodia has employed total means and forces of
almost 5 thousand which has impacted 1.8 million hectares of state land and
involved more than 400,000 households amongst 3 million households
approximately in Cambodia. This giant campaign is estimated to take at least
one year of operation to realize its plan.
Registration of Land Parcel and Condominium
In order to
take control over condominium and ensure the legal ownership of partial
possession right of condominium, the parcel of land where the condominium is
located and all of its units/sections shall be registered in compliance with
the Sub-Decree No. 126 ANK.BK, dated 12 August 2009 on the ontrol and Use of
Condominium.
The Principle of Rights Implementation of Co-proprietors
Title
is given to co-proprietors, i.e. title is only granted to private unit/section
of the condominium whereas the common unit/section of it shall be kept for
common use by all co-proprietors. The parcel of the land where the condominium
is located shall be registered as the single land parcel at the Cadastral
Administration.When investors or immovable property developers transfer for the
first time any of the private sections to any co-proprietor, they have to
convert that land parcel to become co-proprietorship and shall also be
accommodated by internal rules concerning co-proprietor management. After that,
they are required to provide the certificate of land possession and land use
rights, or certificate of immovable property ownership, or certificate recognizing
the owner of the land parcel to the Cadastral Administration for inscription
and depository, and the Cadastral Administration shall issue certificates
recognizing all owners of private units/sections of the condominium.
To ensure
harmony of the co-proprietors before advertising for sales or renting any
private sections of a condominium, developers shall prepare an internal rule
specifying the rights, the obligations, and the responsibilities of
co-proprietors on the private and public sections the proportion of maintenance
cost, the cost of repairs over the common sections, payments for access to
public services, and the procedure for decision making of the Organization
managing the condominium. If the building of the condominium become too old and
could no longer stay in or is affected by any disasters, all co-proprietors
could come to an agreement to repair or re-construct the building by cost
sharing which is based on the proportion of unit cost as written out in the
internal rule of the condominium or based on what was agreed upon in the past
in separate agreement
To record the
private section of a condominium into the Land Registre Book, detailed data on
the private section of the condominium and of the propriety owner requires a
separate computer program for entering the data.
Granting Ownership Right on Condominium to Foreigners
For those
foreigners who fulfill all the legal requirements shall also have their rights
over the private section of a condominium from the first floor upward and not
larger than seventy percent (70%) of its total private sections. This special
co-proprietor shall possess all the rights as those enjoyed by co-proprietors
of Khmer nationality as well, except the right over the land that the building
is located. However, if a condominium is affected by any disaster, the special
co-proprietors shall also be eligible to the benefits over the right to use and
usufruct on the common section that is proportionate to the size of their
private section, or as previously agreed upon, or as the specification
described in the internal rule.
Registration
of Collective Land Ownership of Indigenous People
The 2001 Land Law recognizes the land of indigenous people
being the land that belongs to community’s collective ownership, including
those lands where residences are built, land being used for traditional
agriculture (actual cultivating land and paddy fields/chamcars), reserved land
necessary for crop shifting, land for graveyard, spirit forest lands recognized
by Administrative Authorities and their
neighbors. Ownership right over community’s immovable properties and specific
conditions of land use shall fall under the responsibility of customary
authorities, or known as IP Community Committee, or the mechanism of community’s
decision. Therefore, the regime of community’s collective ownership is
different from that of private ownership because some parts of all community’s
land parcels are partially state private land whereas some others are public
state land. With this special characteristic, the Sub-decree No. 83 ANKr.BK,
dated June 09, 2009 on the Procedures for Indigenous Communities Land Registration has been
promulgated for IP’s collective community land registration, including:
-State private land is the land that the community has
built their residences (residential land) and the land that they farm
traditional agriculture (actually cultivated land and paddy fields/chamkar)
- State public land that has been identified its location, size,
specific boundaries, and the right to use as the community has practiced so
far, such as reserved land necessary for crop shifting, spirit forest land in
one area or more with the total area not exceeding 07 hectares, and forest land
for graveyard (forest land where dead bodies are placed) with a total areas not
exceeding 07 hectares.
For those state land besides the ones that has been described above shall
be registered as state land and offered to mandated authorities in the area to
take control of, but indigenous communities shall have their right to continue
to use and enjoy the benefits following their custom and tradition that they
used to. These lands include forest land for non-timber products, land for
water sources etc.
5.1.3 Subsequent Registration, Inscription, and Real Right Registration
Subsequent
registration shall apply for all transfers, creation, and alteration of real
right which is called updating cadastral data.
·
Real righ transfer can be made through (1) agreement which includes
sales contract, exchange contract, donating contract, inheritance clearing
contract, and (2) by law, including decisions of the courts requiring ownership
transfer, permanent renting right transfer, or usufruct by forcing to sell,
hypotheque or other collateral transfer.
·
Creation
of real right includes (1) putting charge which consists of usufruct, easement,
right to use and habitation, permanent renting right, and ELC, (2) debt
repayment guarantee which includes placement of single-right hypotheque, and
(3) putting charge by requiring immovable property seizing or temporary
confiscating be registered.
·
Alteration
of right such as alteration of possession right to become ownership right, the
alteration from joint-ownership or co-ownership, or from undivided ownership to
become individual ownership.
Subsequent Registration of ELC or Permanent Leasing
Land
The
transfer of permanent leasing right or the transfer of ELC is not the transfer
of the land that the investors acquired leasing right or concession right from
the state. The right on ECL is legal that is stipulated in legal documents
issued by competent authorities for taking control of land and for use in
compliance with specific conditions over a certain period of time via the
contract that has created the concession. ELC right or the right for permanent
lease shall not lead to the creation of ownership right that has been granted
as concession or lease, and only the immovable property that has been
registered in the Land Registre Book that can be subject to ELC granting or
permanent leasing.
ELC or permanent leasing, mortgaging or placement of
hypotheque shall inscribe on the title
recognizing possession right on immovable property or on the certificate
recognizing immovable property owner at the Ministry of Land Management Urban
Planning and Construction which the inheritor could continue the right over the
leasing contract or land concession within the period of the contract when the
lessee or concessionaire passed away and could further rent it out to the third
person if prior authorization from competent authorities is obtained. By what
ever means the concessionaire or the lessee (rentee) cannot become the owner
and shall have no right to claim property right over the immpovable property
that they have succeeded. The concessionaire or the lessor who is the creditor
shall have the right to lodge complaint against their debtor who has pledged
the right to the courts for legal action and in compliance with existing
procedures to repay the loans according to their prerogative and prior right
relative to other creditors only within the period specified under lease or
concessional contract. Creditors shall not have the right to handle the
immovable property which is leased or granted as concession from third party to
their debtor.
The
consequences of failing to follow appropriate subsequent registration does not
only make cadastral data[base] become obsolete, but also render big losses of
money from stamp taxes and the owner who succeeded the right cannot handle the
property including right transfer, lease, or guarantee placement because the
name of the former owner is still on the Land Registre Book.
Standards Setting for Offering the Service of
Subsequent Registration
With
the intention of the provide public service easier and closer to the people,
the actualization of cadastral data, or subsequent registration that is
associated with tax payments, especially stamp tax, the principle of service
delivery in one place shall apply. This is a key that must be discussed between
concerned institutions and to study how an implementing procedure can be
developed. The main points to be discussed include the determination of the
sizes of businesses, so that the duration for implementation, the service fees
to be paid, and other necessary costs involving the process of service delivery
can be defined to make sure that those officials who are involved with these
working flow cooperating with each other in a transparent manner following the
principle that has be determined. These officials include (1) officials in
charge of land registration, (2) officials in charge of certification of
various documents, and (3) officials in charge of valuation of immovable
properties that are subject to taxes for land right transfer. In addition to
the facilitation of public service delivery in one place, concerned
institutions shall make a joint consideration over the measures to reduce and
prevent informal transfers, review stamp tax rate which is relatively high, and
taxes on unused lands. As an additional option, the facilitation of public
service delivery is to openly create private facilitators who are responsible
for their recognized services of transferring the right on immovable properties
and provide licenses with official certification from competent institutions by
requiring an amount of guarantee deposit in a bank or any insurance company.
For
the inscription that is not relevant to tax payment shall also follow the
principle of providing services in one place by preparing the tariffs of
services in accordance with business size and the [necessary] duration to
complete the services.
State land is such an important
resource for social and economic development that the State shall have a
management plan of the property in an effective, productive and transparent
manner for younger generations. For the managemen tof immoveable properties,
the State shall establish an inventory of state land and have a cadastral
map/database indicating the location and each state land parcel, soil
condition, natural characteristic of the land, land use or land use plan, land
classification and determination of authority or institution to take charge of
the state land. The information on location of state land exists in maps of
relevant Ministries or institutions. Ministry of Economy and Finance, managing
the inventory of state immoveable properties shall develop information on state
immoveable properties, with reference to the map indicating location of the
property. This entails collaboration with relevant Ministries or Institutions
in land identification and mapping as a basis for taxation of the immoveable
properties in an equitable and transparent way.
Mandated Ministries or Institutions
shall foster state land registration (public and private), starting from the
high economic potential or areas planned for development, according to the
spirit of Sub-decree 118 dated October 07, 2005 on state land management and
based on the spirit of Sub-decree on sporadic land registration.
The process of state land
registration technically undertaken by MLMUPC is headed by Provincial/Capital
State Land Management Committee (PSLMC). The identification and mapping of
state land implemented by Municipal/District/Khan State Land Working Group
(SLWG) in a transparent process shall be coordinated with relevant institutions
on zoning of state land boundary, and recording of any complaint from the
public and the mandated authority during the land identification and display of
an area map and information on state land. Finally, the data of the state land
parcel that the SLWG agreed up and shall be proposed to PSLMC for approval,
according to the procedure. Then, most of the state land shall confirm the
first classfication based on the actual status of the land use that SLWG via
Commune/Sangkat Field Teams visit the field and make a request from each
commune/Sangkat. The collected map and state land data will provide an
assumption on the state domain.
Only state land is an object used
for social land concession (SLC) that shall be registered first, prior to
distribution. For the state land for economic land concession (ELC), land
registration is implemented to a partial extent, but land registration is very
important to determine the legal status of the state land for monitoring the
implementation of ELC contract, based on each stage, and especially when the
state land reverts to the State after the end of ELC contract.
In the identication and registration
of state land, the Working Group will find out the state land losing public
interest; excluded from ELC and Forest Concession; and confiscated with
provincial order (deika) which shall be registered and reserved for public
development or resolution of housing for the poor and the vulnerable groups.
5.1.5. Demarcation of administrative
boundaries at sub national level
The integration of all areas throughout the country after
receiving full peace due to the implementation of the Win Win Policy of the
Head of the RGC in 1998 in combination with the progress development of the
nation, re-arrangement of administrative boundaries is a key issue. Over the
past, the boundaries of the capital city, of some provinces, some cities, some
districts, some khans, some communes and sangkats are not yet clear, making
management less effective. The fast development of big cities and latest
development in various areas nearby urban zones has changed the roles of
certain areas that require re-arrangement of administrative boundary of cities,
districts, khans, and communes/sangkats to be used as the basis for smooth land
registration and development planning.
The
sub-committee on administrative boundaries at the sub-national level which
includes the Ministry of Interior and the Ministry of Land Management, Urban
Planning and Construction is under the National Committee for Sub-National
Democratic Development (NCDD) and tasked to study and re-define administrative
boundaries of capital city, provinces, cities, districts, khans, and
communes/sangkats. To that end, it is necessary to examine their actual
locations on the ground and to check coordinates on the map. Nevertheless, the
considerations over social, economic, traditional, cultural, and potential
aspects of local area in directing self mastership of each commune/sangkat are
still limited.
The
Ministry of Land Management, Urban
Planning and Construction, the institution to provide technical support will
produce an orthophoto map at a scale of 1:10,000 for sub-national levels to
discuss and seeking consensus over the setting of administrative boundaries,
and in case of necessity, the National and Sub-national levels shall visit and
check actual locations altogether. As for the zones that are next to the
boundaries of neighboring countries, mapping administrative boundary shall
involve national border authorities.
The procedure for
demarcating administrative boundaries shall begin from 2 communes within one
district, 2 communes within 2 districts of the same province, 2 communes within
2 districts of 2 provinces, and 3 communes within 3 districts of 3 provinces.
If an agreement is reached over administrative
boundary map between the communes with shared border, the 2 commune heads shall
sign the minutes on administrative boundary for approval from [their] city,
district, khan, and display the administrative boundary map in public before
sending it over to Capital city, province, and to NCDD at the sub-national
level. In case of disagreement over administrive boundary map between communes
with shared boundary, the minutes shall reflect the points of disagreement to
be facilitated by higher levels until consensus is reached, and to display in
public, so that the required procedures can be followed. Those maps that are
agreed upon and obtained approval from RGC shall implant the poles to mark
administrative boundary and document it as a map for administrative management,
security, social order, local development planning, public investment planning,
land use planning, and land registration.
5.1.6. Resolution of land dispute outside the courts
The Cadastral Commission which is a mechanism for
land dispute resolution outside the courts has been established under Article
47 of the 2001 Land Law, having its mission to address land disputes related to
immovable properties that have not been registered, such as disputes in adjudication
areas that cannot be addressed by the Administrative Commission, and disputes
outside adjudication areas. In order to define clearer authority, the Ministry
of Justice and the Ministry of Land Management, Urban Planning and Construction
issued a joint Prakas No. 02 PrK, dated November 26, 2003 on the Competency of
the Courts and the Cadastral Commission concerning land disputes, saying that
“land disputes over those lands that have been registered at the Cadastral
Commission are those that are equipped with land titles, recognizing all types
of owners issued by the Cadastral Commission, and disputes over land related
contracts that are not registered, such as dispute over inheritance
distribution, buying, selling, leasing contracts, etc. is the competency of the
courts. Whereas disputes over un-registered lands, these are the lands that do
not have titles issued by the Cadastral Commission, shall be under the
competency of the Cadastral Commission.
Structure of Cadastral Commission
The Cadastral Commission is composed of three-level
structure: (1) City, District, Khan Cadastral Commission (CDKCC), (2)
Provincial/Municipal Cadastral Commission (PMCC) that would address land
disputes by mediation and issue decision, and (3) National Cadastral Commission
(NCC) which resolves disputes and issues decisions and/or mediations if
necessary.
Any persons who are involved in disputes of
unregistered land shall have the right to lodge complaints directly to DKCC
located at the Office of Land Management, Urban Planning and Construction and
City, District, Khan Cadastre following the Form of Complaint of the Cadastral
Commission or the like. Upon receiving the complaint, the Cadastral Commission
will conduct investigation, meeting with dispute parties, witnesses, local
authorities, and measuring, defining the size and the boundaries of the land in
dispute to see whether it is under its competency. If not falling under its
competency, the complaint shall be rejected and issue written notification to
dispute parties, but they could lodge their complaints to the higher level of
Cadastral Commission.
Procedure for Land Dispute Resolution outside
the Courts
The resolution of the Cadastral Commission is made
without force. They address the dispute on the ground of basic mediation,
taking the willingness of disputing parties who agree to share benefits to one
another. Therefore, if the resolution is successful, both parties are required
to put their thumb print on the formalities to end the dispute that complies
with the substance of the agreement. If the dispute cannot be addressed, CDKCC
shall refer to case to CPCC for further mediation and decision. In case of
disagreement of disputing parties over the decision made by CPCC, the disputing
parties shall have the right to lodge their complaints to the National
Cadastral Commission for re-hearing. NCC will open a hearing to decide the case
by permitting conflicting parties to lodge their complaints to the courts
within 30 days upon receiving the decision.
After completing the resolution of the dispute, the
body in charge will measure the size and the boundary of the land as agreed
upon or based on the final decision of the Cadastral Commission, then the
Office of Land Management, Urban Planning and Construction of the City,
District, Khan will implement the procedure for land registration based on the
requests of the disputing parties.
In order to speed up land dispute resolution to the
people, from 2007, the NCC has established Land Dispute Resolution Mobile Team
to assist some CPCCs where many land disputes are being addressed. On the other
hand, in order to strengthen the effectiveness, the Cadastral Commission has
collaborated with the National Authority for Land Dispute Resolution to
facilitate the process for taking smooth and effective measures.
5.1.7. Parcel-Based Land Information System andthe National Spatial
Data Infrastructure
The Declaration of RGC on Land Policy No. 27
SaChoNa.Ako in 2009 specifies that Land must be controlled, managed, used, and
distributed in equitable, transparent, effective, and sustainable manner,
contributing to achieving the goal of poverty reduction, ensuring food
security, environmental and natural resource protection, national defense and
socio-economic development in the context of market economy. To implement this
policy, an appropriate means must be available, of which parcel-based land information
system is a key instrument of cadastral data for multi purposes and a basis of
the National Spatial Data Infrastructure. To avail NSDI is to avail land
information that is convenient to access to at low cost, and becoming a tool
for effective land management and land use. In the past, land related data was
aerial photo map taken by satellite or land use plan of ministries/technical
institutions only served one specific purpose, hard to access, and not for
public use, and the data that was available could not be consolidated into the
type of wanted information by users and costly. The development of LIS not only
reduces the cost of searching land information and facilitates those who need
to use land information, but it also forms a public service system that is easy
to access, effective, and sustainable for management, use, and distribution of
information following the principle of good governance. On the other hand, when
information sharing is developed, LIS would be better improved through regular
updates in response to the needs of the users.
Development of Parcel-Based Land
Information System (PBLIS)
PBLIS begins with the integration of all
land-related information of the Ministry of Land Management, Urban Planning and
Construction following a friendly-used and available program by applying the
existing cadastral data of over 3 million private land parcels. The
integration requires the use of agreed Datum in identifying each of specific
location and development of legal norms, technical standards, human resources,
as well as other activities in using,
sharing, maintaining, and keeping the data. The information of all registered
land parcels is detailed, accurate information, and be regularly updated
together with the map showing cadastral plots of land in the Land Registre.
The development of LIS will not affect the
responsibilities of any authorities in collecting of producing land data at
all. It can be proceeded due to the delegation of responsibilities to an entity
in the General Department of Cadastre and Geography to develop multi-purpose
cadastral data. The main issue at the moment is the consolidation of this
cadastral data with other data that are of different legal values. Cadastral
data of the MLMUC is official land information. It is collected from the data
of each land parcel and modern technical surveys with coordinates attached to
2003 Geodetic Reference System based on the 1984 World Geodetic System. The
basis of cadastral data is generated from the consolidation of cadastral
database from all capital cities and provinces. MLMUPC can initiate a mechanism
to develop PBLIS and provide information as well as next steps to members of
CLP.
Development of Multi-purpose Cadastral
Data
Integration this cadastral database with
other information, such as the data on land valuation, topographic map, spatial
data, geodetic data, and administrative boundaries, parcel-based LIS would
become a multi-purpose cadastral database or NSDI. It is necessary to transfer
and to sort cadastral data into another system, then insert the sorted data
system into other data by developing data of data or metadata to form “Multi-purpose Cadastral Data” for sharing land related information to
authorities, private individuals, companies, and other institutions.
The establishment of LIS shall not solely
consider the technical aspect and let it to drive on its own, i.e. shall be
based on the Needs of Users as it is possible to generate income through user’s
fee. The incomes shall be given to the authorities who produced the data, not
to be offered to the persons who are in charge of the data system. In the
integration of land related information, MLMUPC can provide guidance on the
following strategies:
-
development of metadata
-
setting standards for incorporating the data
into a synchronized form
-
specifying the reference data of Geodetic
network
-
setting standards for sharing data and
service fee for data reading, downloading and transforming
-
developing the principle for collecting
service fee versus data use.
5.1.8. Classification of Land Types by Natural Land Characteristics
The Kingdom of
Cambodia used to pay attention on the sustainable management of land and water
starting from the agriculture sector since the era of Khmer Empire that
supported the national economic development at that time. After the end of
civil wars, the creation and implementation of economic globalization policy
together with population growth putting more pressure on land and natural
resource use.
In the whole
country more than half of land resource is less fertile and the fertility has
been changing differently. Most of high and medium fertile lands are centered
in the low land areas. The use of
agricultural land has not been studied thoroughly yet. Some lands with their
propensity to agriculture are exposed to [the risk of] conversion for other
purposes, and obtained less protection in keeping them productive. Agricultural
data collection related to scientific, economic, social, and environmental factors
for determining land productivity, the development of criteria for classifying
the types of agricultural land, defining the boundaries of agricultural land,
land use mapping and land development are the founding bases for land use
planning in collaboration with line ministries/institutions. Hence, geo-study
related to the occurrence, changes of land surface in other areas and level of
soil substances is required to determine the soil quality and appropriate types
of crops or plants. The quality of land is defined based on the substances of
sandy land, acidic land, land of low carbon/azote structure, phosphate
discharge, potassium exchange, and of other structures. The land classification does not only assist
the land use in accordance with its potentials, but also contributes to the
promotion of people’s livelihood and determining land tax in an equitable
manner, as well as to the identification of the policy One Village, One
Product. MAFF has the mission to manage agricultural land and pushes for the
classification of land types by their natural characteristic, with the
participation of concerned Institutions and experts in developing legal norms,
based on research studies and experience of professional officers.
5.2.
Land Management Sub-Sector
Land
and water are extremely scarce natural resources for livelihood support and are
used for socio-economic development. Population growth intensifies the use of
land and natural resources that all relevant sectors, such as agriculture,
forestry, fisheries, water resources, environment, mines, industry, tourism,
communications and transportation, urban planning, construction of physical
infrastructure shall arrive at a consensus for effective management and use of
land and wate to their potentials and in a sustainable manner.
Land Management Policy
The
objective of land management is to ensure management, protection and use of
land and natural resources with transparency and efficiency in order to
preserve environmental sustainability and equitable socio-economic development
in rural and urban areas as well as to prevent disputes over land use by
regulating land development or land conversion.
The
Land Management involves in smooting the integration of Land Management Strategic
Plan with other necessary tools by sector in each geographical area to avoid
disagreement over land and natural resource use to ensure food security,
national defense, and the stability of natural environment and to direct
balanced development on physical infrastructure and easy access to
communications from one area to another domestically, regionally and
internationally. In that sense, Land Development Plan should ensure the supply
of land for next generations to come, to specify areas of land use for
development that is well in line with the natural endowment of the land, to
improve its own geographical characteristics, enhancing people’s living
standards, reduce gap between areas, to align land use planning in each area to
match with land management planning nationwide by taking into considerations
the conditions and required factors of each specific area.
In
planning of urban or rural areas, it is necessary to reserve land for public
development or any use of a commune, Sangkat or city in the future, particulary
for communications, social and physical infrastructure or resolution of a
housing issue.
Land Management Strategy
In
order for a plan to be implemented smoothly and minimize risks caused by
development projects, Spatial Planning and Housing Development shall link to
the development of economic zones, especially industrial zones to contribute to
the balanced distribution of the population across the country and equitable access
to benefits from economic development. With this, a balanced economic structure
should be in place to be able to ensure long-term development in the context of
globalization and to provide opportunities for training and employment to the
people. The main objective is to avoid the movement of people migratingfor work
or looking for jobs far from their homes. Therefore, economic development
planning shall take into account the housing development in order to cut costs
over travelling and thus contributing to the reduction of the gap of living
environment from one area to another.
The
main economic measure is to use the potentials of the types of natural
resources for the development of the sectors of mining, industry, energy,
trade, business, national economy, and tourism. The appropriate conditions and
the exploitation over oil, natural gas, and other mineral resources are to
ensure sustainable management. Facing with the current situation of climate
change, Land Management and Natural Resource
Management and Use are the foundation for undertaking the plan that has been
studied and agreed upon by line institutions on the Strategic Plan of
Management and put it into use so that socio-economic development can be
geared.
5.2.1. The Principles of Land Management:
Land Management is a cross-cutting issue,
having interaction with all sectors, and involvement of relevant institutions
at the very beginning is required. Existing data at the local levels shall be
transformed into summary reports and to develop a Reference Map for presenting
to participants together with the analysis of the dynamics of land management
issues, demographic analysis, demographic trends, and changes in different
locations, plus future vision, the strengths of agriculture, agro-industry,
industry, trade, tourism, culture protection, natural resources as a ground to
be considered by stakeholders in scenario and perception setting, in developing
strategy, monitoring and evaluation.
The
policy of Land Management is to achieve effective and equitable development,
and to improve people’s living standards. Hence, the process of LM shall
respect the principle of participation, consensus, implementation of decentralization
and de-concentration by providing support to the sub-national administration,
agreement over the hierarchy of planning and planning approach, respect of dual
direction, i.e., bottom up and top down approach of all decisions, integration
of all levels, sectors, and those geographical areas of mutual relevance,
keeping balance between development and benefit sharing to all areas, timely
and prudentially prioritizing development plan to vulnerable zones and the
zones that might be affected.
5.2.2. Tools of Land Management:
With
reference to aerial photos of geographical locations that is the subject of Spatial
Planning and records of information related to the status of actual land tenure
and land use, LM should take into considerations socio-economic needs of local
areas, development trends of all sectors over medium and long-term, and the
benefits that those local areas could obtain from implementing the plan.
LM
shall be conducted nationwide to ensure sustainability, equity, balance, and
integration domestically, regionally, and internationally. As the resource is
limited, LM shallproceedbased on priority order for those areas of high
population and economic growth. This is the task of local areas and for those
tasks that cannot be achieved, requests for supports shall be made to the
higher level, or to delegate responsibilities to higher level of
administration.
The
policy for LM shall be made in compliance with the Constitution of the Kingdom
of Cambodia and the vision of land policy as well as the existing laws, rules
and regulations, such as the Civil Code, the Law on Administrative Management
of Capital, Provinces, Municipalities, Districts, Khans, the Law on
Administrative Management of Communes/sangkats, the Law on Land Management,
Urban Planning and Construction, the Law on Expropriation, the Sub-decree on
the Procedures of Land Use Planning in Communes/sangkats, the Sub-decree on
Construction Permits, the Sub-decree on the Management of Sidewalks along
National Road Network and Railways of the Kingdom of Cambodia…Despite this
there are further needs to develop complementary rules and regulations or to
amend them to be consistent one another, such as the Land Law, the Law on Land
Management, Urban Planning and Construction, Construction Code, the Law on Agricultural
Land, the Law on the Management of State Properties.
5.2.3. Hierarchy of Spatial Planning
Parallel
with D&D Policy and based on the ground of the Law on Administrative
Management of Capital, Provinces, Municipalities, Districts, Khans, and the Law
on Administrative Management of Communes/sangkats, competent authorities to
take initiative, arrange, coordinate, and approve Spatial Planning comprise
four administrative levels, namely:
-
A. Spatial Planning at the National and Regional level
shall
be initiated and developed by the National Committee for Land Management and
Urban Planning under the leadership of the Ministry of LMUPC based on its
long-term vision of not less than 20 years and that can be reviewed once every
ten years pursuing to the request of RGC, except if it is necessary to review
prior to the said period.
-
B. At the Capital and Provincial Level there are Land Use
Master Plan and Land Use Plan at the Capital Level, and Provincial Land
Management Plan at the Provincial Level. Only the Provincial Committee for
Management and Urban Planning who takes the initiative with approval from
Capital/provincial Council. Land Use Master Plan, Capital Land Use Plan, and
Provincial Land Management Plan can be a 20-year vision at least, and can be reviewed
once every five years to be decided by a Sub-decree upon receiving approval
from the National Committee for Land Management and Urban Planning.
-
C. At the Municipal, District, Khan Level there are Land Use
Master Plans and Municipal Land Use Plan whereas at the District and Khan Level
there will only be District/khan Land Use Plan. LUMP and LUP shall be initiated
and developed by Municipal, District, Khan Land Management and Urban Planning
for a vision not less than 15 years and can be reviewed once every five years
with the approvals from Municipal, District, Khan Councils and Capital,
Provincial Councils through Capital, Provincial Committee for Land Management
and Urban Planning, and to be decided by the National Committee for Land
Management and Urban Planning.
-
D. At the Commune/sangkat Level LUP shall be initiated
by CSC with the facilitation and technical support from Capital, Provincial
Committee for Land Management and Urban Planning with a vision of 10 to 15 years
and that can be reviewed once every five years if necessary. CSLUP shall
receive approvals from CDKC and CPC through Capital, Provincial Committee for Land
Management and Urban Planning in conformity to the spirit of the Sub-decree 72
on Commune/Sangkat Land Use Planning.
5.2.4. Development of Urban Planning and Construction Regulations for
Urban Areas
In
order to maintain the balance between urban expansions on to the rural areas,
the trends of unclear urban expansion should be stopped. Urban expansion shall
be equipped with the perception of integration of cities with rural areas, so
that imbalance of existing potentials can be reduced. The main functions of
urban area is to form the centre of administration, residence, manufacturing,
trade, services, tourism,…which requires primary treatment over congestion, and
development possibility via the establishment of city system connecting with
all types of communication network. In that sense, urban development must be
accommodated with Land Use Master Plan which is a physical plandetermining the
common vision and strategy of development and Land Use Plan which defines the
division of land use areas by type of each land, plus the detailed plan of the
setting to respond to the needs of communities by regulating the look and the
shape of the building, area of space, green area, signs positioning.
The
measures forland management in cities and urban areas shall also be considered
in the aspect of social equity, such as the needs for appropriate residences and
the balance between the capability of poor families and those who have low
income could access decent residence and economic needs of the state and the
private sector. City Development Plan, besides providing employments shall
prioritize the development of public recreation spaces to ensure living with
quality, safety, good environment, and beauty, and to identify Special
Management Zones for city green belt, etc.
Developing
Urban Planning shall involve defining land use and ensure effective land
development to be right to the objective and shall include public
infrastructure, facilities, and sufficient public space in line with technical
required standards. The regulation on city and urban land use is divided into
two categories, namely urbanization motivated by land type where construction
is permitted based on zoning development project as set forth in the plan and
the type of land that control the expansion of urbanization where the
construction on this type of land shall be limited, to comply with the existing
procedures and legal framework. As for the type of land that pushes for
construction, one shall also consider the ratio between the constructionareas
to that of the land plot. In any circumstances, the ratio shall not exceed 75
percent. On the other hand, land use index which is the ratio of total
construction area to land area shall also take into account in connection to
zoning where the types of construction are set forth, so that the environment
for social well beings is ensured. Hence, Urban Planning Development shall
respond to human basic needs by considering various aspects, such as recreation
area, entertainment area, sport area, public space, cultural and religious
centre, offer of well-being to all age citizen (children, youth, women, men,
old people, people with disability) so that they can access to health,
education services, etc.
5.2.5 Development of Regulations for Rural Areasand Land Conversion
Rural area development
should pay attention to maintain [its] stability and develop its potentials in
order to strengthen its
independence to be the areas to stay, the areas of social and economic land concessions. Hence,the
expansion, the strengthening, the decentralization of LM planning, including
services to enhance the capacity of governing institutions in local areas and
to effectively use the areas that have been developed. The protection of
natural resources, biodiversity, and key landscape that are exposed to risks
and losses are necessary to avoid adverse consequences, especially poverty and
migration of local people. If natural resources, land, water, living creatures
and vegetation, and forest resources are properly managed and in line with
environmental protection principle, rural area would become attractive and
there is zero need to take migration preventive measures.
Agricultural land and
forestland are the main sources for producing food crops, agro-industrial
crops, and for maintaining natural environmental that must be identified and
effectively managed via the formulation of regulationsover the use, the conservation,
protection and sustainable development. Therefore, agricultural land use,
forestland use and fisheries shall be appropriately improved in order to
increase investment on agricultural sector, and to introduce the development of
industry, mines and energy that is impact free or of minimal environmental
impact.
In order to manage
agricultural land, land natural endowments should be studied, classify land
based on the structure of compositions and to divide agricultural land areas
for directing land use and land improvement. The data on agricultural land in
some areas gathered by MAFF is very helpful for classifying the types of
agricultural land and mapping of agricultural land use in collaboration with
concerned ministries. At the same time, measures to administer the areas of
biodiversity, agriculture must also be formulated to ensure safety to the
origin of genetic resource in the area and eco-system, including crops, vegetation,
and animal species that are born or present on the spot which might be affected
because of the use of bred seeds or pesticides.
The development of physical
infrastructure is a conditional requirement for socio-economic life and
improving the capacity and the role of LM planning. Transportation infrastructure,
information system and communications as well as the supply of electrical
power, potable water, and telecommunications must be strengthened and improved
through rehabilitation and/or reconstruction, especially to make sure that
people in the rural area can access to power supply, telecommunications, public
health, potable water, and sanitation system.
If necessary Rural
Development Program should consider including Village Improving Project,
Environmental Protection, Rural Cultural Heritage Protection, Preserving Rural Landscape,
designing constructions and infrastructure that is based on inputs of those who
involve in planning and the goals of development.
5.2.6. Land Readjustment, Land Consolidation, Land Sub-division
Land readjustment, land sub-division
and land consolidation in a city or
rural area are undertaken to increase economic productivity, to resolve conflicts of land use and to
encourage local development, social and physical infrastructure development and
village development in a harmonized manner. The general perspective of the
current universe always encourages the implementation of land readjustment to
gain scale of economy. However, land adjustment, land sub-division, and land
consolidation shall comply with the approved land use plan for public interest
or national requirement by respecting ownership over property and agreement
from landowners or legal possessors. In this sense, land valuation system needs
to be effective and transparent for resettlment or provision of compensation in
cash, according to each case.
In
rural Cambodia where farmers have many small parcels (0.5 ha per parcel), land
readjustment, land sub-division and land consolidation for rearrangement,
exchange and collection of scattered parcels is a good means that improves
agricultural land occupation, facilitates the implementation of agricultural
land improvement, resolves disputes arising from water resources or transport
of agricultural products and saves time for agricultural production.
Concerning village development, the collection
of scattered residences as a village will gain access to public service,
facilitate transport and exchange of products and ensure social security and
safety.
In
a city or urban area, land readjustment is the exchange of parcels mostly
implemented for development projects, e.i. social and physical infrastructure
development projects including green space or the requirement for the public
interest, which may impact some parts of the whole land parcel. In this case,
the land sub-division is applied, and landowners agree to move to a new area
voluntarily or to receive compensation in cash or any thing.
With
regard to land registration, MLMUPC issues an instruction on how to record
types of land use as agricultural land, subsistence farming land (chamkar),
small-business or factory land, residential land, arterial construction land, based
on the declaration of the land occupant and the direct observation.
Generally,
land readjustment, land sub-division and land consolidation are undertaken,
according to the public interest or the request from a land occupant which can
be reviewed for approval, if the request does not affect the orderliness or the
public interest. However, in case the land use changes, which causes the
complete change of the land value, it is necessary to have consultation with
the competent authority, prior to approval.
5.2.7. Development of Priority Area
With the intention to
capitalize socio-economic benefits, Land Management shall be accommodated by
Economic Development Management Plan and Job Creation by providing Training
Opportunities and Employments to the people. The main objective is to avoid the
movement of people’s migration in job seeking that is only available in urban
area or far from their homes. Hence, Economic Development Planning shall be
linking to Housing Development, so that Traveling Costs can be minimized and
the gap between areas can be reduced.
The
institutions and authorities that are mandated to control state land and
natural resources have made efforts in developing Land Protection and
Development Plan within their jurisdiction under the framework of
socio-economic development. Nevertheless, sustainable development planning in
some priority areas has not yet been closely inter-connected by sector, and is
less effective in the implementation aspect. In general, all development plans
are mostly led by private sector, looking to invest based on their business
goals, and sometimes not responsive to the objective of the state, but rather
impact on the environment and the society.
Apart from Urban and Rural
Planning, there are several areas that detailed and effective land and natural
resource use planning should be in place by assessing precisely
socio-environmental impact of development projects, such as:
-
Protected
areas: coastal zones, wetland areas, bio-diversity zone
-
North-east
and plateau areas
-
Areas of
Tonle Sap and Mekong basins
-
Touristic
areas
-
Areas prone
to risks
-
Special
economic zones
-
Economic
corridors
-
Natural water
reservoirs, etc.
5.3
Land Distribution Sub-sector
Right after January 07, 1979, Cambodia has distributed
land to farmers, occupants and users in various forms through five stages: (1)
allocation of agricultural and residential land to households living inside the
country by recognizing possession right in 1989 (2) distribution of land to
returnees from Cambodia-Thailand borders in 1991-1993 (3) distribution of land
to former Khmer Rouge armed force integrated into the greater Khmer family in
1998 (4) implementation of Social Land Concession Program in 2003 and (5) the
campaign to implement the Existing Policy by New Actions in 2012.
In the Chapter on Concession of the 2001 Land Law,
Articles 48 to 62 specify about Land Concession by competent authorities, based
on their jurisdiction, to grant to natural or legal person or groups of people
to control and use their rights on that land in compliance with the laws. Land
concession can be made to meet social benefits, known as Social Land
Concession, allowing beneficiaries the rights to prepare the land for building
homes and/or planting crops to support their lives, or to respond to economic
benefits, known as Economic Land Concession where beneficiaries clear the land
to generate benefits through agro-industrial farming on the land.
State land which is subject to land concession both ELC
and SLC is only applied for those lands that have been classified as private state
land and have registered in the Master List of Land Registry.
5.3.1. Social Land Concession Policy
Granting SLC is the transfer of private state land that
has been registered to the poor who are landless or who have no land for
building homes and/or for family-based farming, or both.
The Sub-decree 19 dated March 19, 2003 on Social Land
Concession specifies the objectives of granting land concession to:
- Poor and homeless families for home construction
- Poor families for family-based farming
- Those families to be re-settled as a result of public infrastructure
development for re-settlements
- Those families affected by natural disasters
- Families of returnees
- Demobilized soldiers and families of deceased/disable
soldiers
- Developing areas of unorganized development
Social Land Concession Program
SLC program is available at the local and national
levels. The mechanism for implementing SLC is present at all levels of
administration, i.e. national level, Capital, Provincial, District, and
Commune/sangkat levels.
- At the local level, Commune/sangkat Councils
shall initiate SLC program and develop SLC plan, if necessary, or by relying on
the initiatives of the people or any organization. Local SLC Plan is to be made
on yearly basis in conformity to Commune/sangkat development plan that requires
technical assistance from Municipal, District, Khan Working Groups over land
identification, land classification, land use planning, and setting criteria
for land beneficiary selection. Local SLC plan shall be referred via Municipal,
District, Khan Working Groups to get approvals from the Provincial/Capital Land
Use and Allocation Committee (PLUAC) that would notify the National SLC
Committee to review and make official decision.
- At the national level, SLC program that is
initiated by concerned ministries and institutions shall submit to the National
SLC Committee to review and consult with relevant ministries and
institutions.SLC plans both at the local and national levels that have been
approved shall be disclosed to the public at the relevant Commune/sang at Hall,
the PLUAC, and the National SLC Committee during office hours.
Keys
of Social Land Concession
The keys of the
implementation process of SLC on 3 main phases include:
First, Land Selection: the lands that are used
for SLC are those lands that have been registered as private state land. For
this, CDK Working Groups needs to provide technical assistance to Commune/sang
at Councils on Land Identification, Land Classification up to Land Use
Planning. Identifying state land for SLC purpose is the most critical point and
is the starting point that the institution/authority mandated to control state
land would think and develop as an agenda in their work program, so that social
safety and equity can be address in the future. Currently, RGC allows the state
lands ceased from illegal holding to follow the spirit of Order No.01 dated May
10, 2006, or the spirit of the Government Circular No. 02 dated February 26,
2007 be used for this purpose. However, implementing them has been facing with several
challenges, such as the status and the legal aspect of land occupation and the
actual location of the lands that have been seized by provincial subpoena are
still unclear, and in some cases seizing back lands happen only on paper as
there is no actual lands.
Second, Land Beneficiary
Selection: Commune/sang at Councils that disseminate the information on SLC shall
determine the date to file application for land concession. In principle, poor
families who are landless or lacking of land to reside on in the area of SLC
and of at least 2 family members can apply for concessional land at commune/sang
at hall. To ensure transparency, the list of all applicants shall be publicly
displayed, and after assessment/scoring for beneficiary selection, the list of
the applicants to obtain land, reserved applicants who may obtain land as well
as those who failed shall be re-displayed within 20 days for complaints from
those who are not satisfied with the results of the assessments.
Third, Land Development: In the SLC plan serious
considerations on the development of infrastructure including physical
infrastructure such as connecting roads, clean water system, sewage, power
supply, and social infrastructure, including schools, health center, location
of markets… and other necessary services, such as administrative service,
security safeguard, tools/equipments for land development have always been the
case, so that livelihood can be guaranteed. Land beneficiaries cannot sell,
exchange, rent, or donate the land they received over the first five years, and
are required to comply with conditional concession and to honor the contract,
only then they can become property owners.
Land
distribution can be undertaken in forms such as social land concession,
donation and
regularization.
5.3.2. Economic Concession Policy
With
the objective to reduce poverty and distribute more broadly the fruit of
economic growth, RGC has promoted agriculture and agro-industry to play
important roles, so that the means for livelihood are plentiful and are led by
small land holders. This perception stresses the improvement of paddy yields
and paddy markets, diversification to other crops besides paddy while at the
same time expand agro-industry, trade of agricultural crops, and increase
off-farm income basing on rural services that provide supports to the markets
and product processing.
ELC
is to generate agricultural intensive farming activities that requires big and
appropriate investments. ELC means the state offer the right to investors to
use state land to obtain in return agreements to develop the land, increasing
agricultural products in the framework of investment intensification that would
create jobs in rural area, a better opportunity for livelihood and better
management of ecosystem. These are the criteria for evaluating proposed
concessions. The second benefit is the expectation of the state on the possibility
to increase national budget through taxation levied on crop export.
ELC
is different from other forms of state land distribution, i.e.concessionaires
are obligated to use the land for specific purpose of the state which means
capital investment is required and there will be strict monitoring on actual
practice. In contrast, selling state land means that the state would receive so
much money, and what is being made on the land surface is not the concern of
the state. Lease is also similar to that, but to add definite timeframe and certain conditions. ELC
is different from selling and leasing because concession is a form of land
distribution in order to meet specific objectives of the state. Therefore,
concessionaires shall demonstrate that they are capable and committed to comply
with LUP and Investment Plan, and the Government will monitor land use and make
sure that its objectives are being fulfilled.
ELC
is the granting of private state land to agro-industrial business, including
food crops or non-food crops for domestic processing handicraft or industry,
and for export, and animal raising in connection with processing or export.
Aquaculture in water territories that belongs to state public property or
reforestation on state public land to create a forest to supply timber or
wooden fiber, or for manufacturing paper shall not fall in the scope on ELC.
As
ELC has such a nature, there is a need to examine thoroughly its technical
aspect and to jointly make detailed plan between the Government and the
investors. The Economic Land Concession Authority with support and inputs from
Technical Secretariat shall take the responsibilities in monitotring and
introducing activities to be doing as planned in the concession contract. Any
concession granting shall be under general conditions and be monitored by the Technical
Secretariat.
State
land that can be the locations for ELC or for permanent lease is the land that
has been identified and registered as state private land, accommodated by
primary Socio-Environmental Impact Assessment, development plan, and land use
plan, agreement on treatment over settlement and has publically consulted with
the public and local authorities
The
initiation of ELC project following the substance of the Sub-decree 146 dated
December 27, 2005 could be of two aspects, namely Concession through an Appeal where
competent authorities sign contract as the party who proposes the Project and
appealing for investors, and Concession without Appeal where investors develop
the Project submitting it to competent authorities to sign the contract.
1.ELC
Project via an Appeal
For
the initiation of ELC through an Appeal, the competent authorities who sign the
contract shall notify the size, the type, the general plan for land use and
development, socio-environmental impact assessment by preparing necessary
documents and putting conditions to apply for Concession Project. The Technical
Secretariat shall broadly disseminate the Announcement over Application
Submission and send this Announcement to CDC to identify investors.
Investment
Proposal through an Appeal shall be submitted to the Technical Secretariat and
to attach the Business Plan on land use and investment plan for land
development, source of capital, labor needed, and the source of labor supply,
technology, tools, fertilizer, pesticides, category of priority crops that are
planned to use preventive measures or reduce adverse impact, connection and
support to SLC and processing of domestic raw materials, if any. These
information are used as the bases for assessing and ranking proposals by the
Technical Secretariat for review and issue recommendations to competent
authorities who sign the contract.
The
Competent Authorities being the signatories to the contract shall invite
proposal owner who was ranked as the top condidate to negotiate the Concession
Contract, and if an agreement is not reached, the second shortlisted candidate
shall be invited to negotiate until the Draft of the Concession Contract is
reached.
2.
The Initiation of ELC Project without any Appeal
The Competent Authority being a
Signatory to the Concession Contract can consider the proposal of ELC without
an Appeal in case the proposal owner promised to provide special benefits, such
as bringing in new technology, special linkages between ELC and SLC, special
ability in marketing, processing, or exporting. Under such a case, the
Technical Secretariat shall prepare a brief description on the business and financial
background of the proposal owner, the idea of the proposed investment,
information pertaining to land size and location.
The proposal owner who has undertaken business registration as required
by the Law on Business Rules and Registration of the Kingdom of Cambodia can
submit their proposal without appeal to CDC or Provincial-municipal Investment
Sub-Commission who, in turn, shall refer the proposal to Competent Authority
being a Signatory to the contract for review and whether or not to consider it.
Then, the Signatory Competent Authority shall finalize the criteria for
selecting Land Concession by requiring the proposal maker to provide detailed
documents of the proposal.
The negotiation for contract signing
of a Concession Project without any Appeal shall be made within the period not
exceeding 28 working days and if the negotiation failed, the Signatory Competent
Authority can stop considering the proposal.
The Signatory Competent Authority shall consult with local authorities,
and local people representative upon receiving detailed document of ELC with or
without Appeal by sending one copy of the document to commune/sang at council
for review and comments. In case of objection, commune/sang at council shall
provide clear reason for that.
3. Review of ELC
The Signatory Competent Authority is responsible in implementing
Concession Contract that has been implemented so far through the establishment
of mechanism and procedure for monitoring the implementation of Concession
Contract and cooperate with line ministries and institutions and making report
on the management of Concession Contract to MEF and notify the Technical
Secretariat or Capital/provincial Committee for State Land Management.
Article 59 of the Land Law says “land
concession may be of maximum size of 10,000 hectares”. The approved land
concessions larger than this are subject to downsizing. However, if the
downsizing would damage the ongoing business, concessionaires may enjoy special
exception in reviewing the existing ELC. the Technical Secretariat shall create
ELC Log Book that have been implemented by ministries/institutions and local
authorities to examine the existing conditions of the contract upon the
implementation by concessionaires on the level of investment that has been made
and that are planned for further implementation on the cost of land use based
on the existing Concession Contract, etc. And if found out that one
concessionaire hold land concession more than ten thousand hectares, the
ministry, the institution, or the local authorities who signed the concession
contract shall make report on the implementation of ELC contract and attach the
recommendations of the Technical Secretariat and the results of the review to
MEF.
Concerning the review of existing ELC,
the Ministry of Land Management, Urban Planning and Construction shall regularize the land
within the concessional area, or to readjust land parcels, and adjudicate the
right on land of land occupants in the areas of review and to register land
parcels following the existing procedures.
5.3.3. Land Distribution Planning, Partnership Development between
Small and Large Scale Farms, and Participation from the Private Sector
So far, RGC has issued the
Sub-decrees on SLC, ELC, and Contract-based Farming. However, the
implementation of these Sub-decrees has not been smooth and not being carried
out in depth, especially the establishment of partnership between large-scale
farms, agricultural enterprises, and those farmers who hold small and medium sizes
of land, or between ELC and SLC. With regard to land distribution for economic
goal, RGC has determined in granting economic concession to be implemented on
the basis of tiger skin, i.e. to take out villages and rice fields/chamkar of
the people in ELC area. With reference to the Notification # 1117, dated
September 01, 2011 which is an outcome of the Cabinet Meeting on September 26,
2011 decided to mandate CDC, MAFF, and MOE to strictly monitor the
implementation of those companies who have obtained Economic Concessions on
Agricultural and Agro-Industrial sectors from RGC, and not to bother people’s
land where their villages exist long time ago, that is to implement the
principle of tiger skin. On the other hand, before granting ELC to any
companies, actual field visits is a must, and if there are affected people who
are living in a proper village, the land must be cut [from ELC] and ceded to
them as SLC, and also to set aside another 10% to meet people’s increasing needs
in the future. For those companies who fail to implement the principle of tiger
skin and to spark into conflicts with the people, the authorization issued
earlier to them shall be revoked. This would provide large benefits to concessionaires
to build partnership with local people, in ensuring harmonization over
investment process, in the supply of labor to their farms, access to new
cultivation techniques, to enhance the quality and quantity of agricultural
production, to complement one another in crop processing, and to promote
farmers’ livelihoods. The key points of the process of granting ELC that RGC is
expecting is to build trust between concessionaires and local people which is
very often people mistrust or because of the provocation of perception which is
contradicting to ELC policy, abuses from concessionaires when they clear the
land before specific boundary demarcation, or they level village land, or the
land where people occupy and have been using for so long ago. Therefore, the
dissemination of ELC policy to reach down to the people, the negotiation with
local people, transparent investments, and the involvement in monitoring from
local authorities are the critical factors to be looked at. Also, local
authorities must also take part in preventing on time land encroachment in the
concessional area, or preventing any activities which would impact on investment
process of concessionaires.
For socio-economic development that
is starting from the agricultural sector, true partnership between small and medium land holders with
large-scale farms or agricultural enterprises where the state has to act as
coordinating body in providing transparent and effective guidelines. This is
the implementation of the principle of Public-Private Partnership (PPP).
Granting ELC without affecting people’s land and to follow the principle of
tiger skin is an ideal option for implementing partnership between public and
private sectors which has to be bonded through contracts either through verbal
or written contracts, such as contract farming between farmers and the owners
of large-scale farms. Besides the implementation of ELC under to principle of
tiger skin, there are many other options to be considered with regard to
partnership between public and private sectors, such as reserving the land that
is the subject of ELC to offer as SLC, to sign contract farming between small
or medium land holding famers residing next to or close by large farms with
large-scale farms or with agricultural enterprises, establishing new
development programs to serve agro-industrial sector linking with land granting
to landless families, etc.
The implementation of contract
farming would contribute to skill strengthening of farmers both the production
skill and product management skill. Contract farming is a form of trade which includes
small-scale farmers into the value chain of large companies or farms. This, in
turn, would create a win-win relationship by help improving the supply chain
which may cut costs of supply, ensure quality supply, and farmers could also
obtain new cultivation techniques, and could improve the quality of their crops
through the utilization of new seeds, fertilizers, and techniques to attain the
goals of information dissemination of certain positive experiences in various
regions worldwide on large plantation over long-term period, such as rubber,
black pepper, coffee, tea, silkworm culture, and especially seasonal cereals
for family-based farmers for examples, corm, bean, cassava, sesame, etc. Apart
from cultivation that is based on contract farming, there is a need to also
promote animal husbandry, aquaculture in order to connect the relationship
between investors to farmers, producers, processors. In the context of
Cambodian farmers where the majority practice traditional cultivation or
customary animal raising with limited market knowledge, it is necessary to
encourage them to bond into agricultural groups, associations, or communities
to access to information about terms and conditions of contract farming on new
techniques and methodologies over cultivation, animal raising, or to obtain and
distribute better crop seeds as well as good animal species, and aquatic
varieties plus the management and facilitation of production, ensuring the
quantity and quality of agricultural crops and competitiveness to respond to
domestic consumptions and export. The experience of implementation of contract
farming in some neighboring countries should be tested in various arable areas
or places for animal raising that are favorable with lowest risks involved, and
with participation of all concerned institutions for experimentation purposes
and to expand successful practices. In the initial step, a place within an area
of ELC and local people who could be a good example should be chosenfor further
replication in other concessional areas.
5.3.4. Policy on Illegal Occupation over State Land in Rural and
Township/Urban Areas
The
Land Law has terminated land occupation under form of possession from August
31, 2001. Article 18 of this Law says Any entering into illegal possession
of state land shall be nullified and voidedand cannot be made legal in any form
whatsoever, however, with the goal
of poverty reduction and socio-economic development, the RGC has made efforts
in addressing the increasing needs for land of the peopleby securing land
holding, granting ELC, and increase of revenue from state land use. In addition
to these principles, RGC issued 2 Circulars: Circular 02 SR, dated February 26,
2007 on Illegal Occupation on State Land; and the Circular 03, dated May 31,
2010 on Resolutions over Temporary Settlements on State Land that has been
illegally occupied in Capical, cities, urban areas presents the procedures to
address the issues of illegal land occupation.
Circular
02 has the objective to address illegal state land occupation
on forestland and rural land by private individuals and along with law enforcement, actual examination of each case of
encroachment is required with some degree of tolerance, especially for poor families
and for the land of concrete business. The Circular presents 2 ideas, (1)
implementing the principle prescribed under Article 18 of the Land Law, and (2)
real situation-based policy, allowing poor families and landless people
continue to use the land that they have temporarily occupied.
Illegal state land occupation means:
-
Entering
into occupation of state land after the 2001 Land Law became effective
-
Entering
into occupation of state land which has been identified as public state land
-
Entering
into occupation of state land when letter of authorization or contract expired
-
Occupation
of state land larger than or in different location from the one specifying in
the Letter of Authorization or in the contract
-
Right
Transfer over State Land Use by breaching the conditions cited in the Letter of
Authorization or the contract
-
Illegal
transformation of state land occupation to be private property
Measures
for Illegal Occupation of State Land
For State Land which has been Illegally Occupied the authorities
occupying state land or Capital, Provincial Governors who have the information
on the location, the size, and the identity of state land occupants shall issue
a letter to claim back state land by giving them 30 days to respond and discuss
with illegal occupants with the participation of local authorities, commune
head, sangkat head, and municipal, district, khan level, and if unable to
address the problem, a report with notes of suggestions shall be submitted to
Capital, Provincial State Land Management Committee to designate officials to
examine or to further discuss, or convene the meeting of Capital, Provincial
State Land Management Committee in order to seek agreement basing on the status
of occupation on a case by case basis. Following
the meeting, report of each case must be made and be accommodated with the list
of names, location, and land size of illegal occupation to seek the comments
from the National Land Dispute Resolution Authority and Capital/Provincial
Governor shall issue decision based on each case and leave time for appeal. If
the illegal occupant resists, the authority holding state land shall file
complaint to the courts.
For
forestland that has been issued warrant to seize back following the Order 01 BB
of RGC on the Prevention of Forestland Clearance for Property,
Capital/Provincial Authorities shall coordinate with the complainant to seek
for primary solution by taking Forest Cover Map 2002 as a reference and based
on the nature of occupation and the status of the occupant on a case-by-case
basis. If the complainant disagrees with the coordination, Capital/Provincial
Governor must issue a decision to object the appeal and allow time for further
appeal to the authority holding state land or to the courts.
Policy
for Illegal State Land Occupants
For poor families who are landless or
vulneralbe and have illegally occupied state land, RGC may tolerate them, so
that they would obtain an appropriate size of land for livelihood and/or living
based on actual case, such as SLC. As for indigenous people to whom their
customary authorities argued that the land that has been claimed by the
Government is under their collective use, then the claim shall be postponed
until such a time when the land is registered as state land, except the claim
for property right is made byindividual who is an indigenous person where the
claim must beproceded as usual.
Policy for State Land
Illegally Occupied
With regard to the land that has been withdrawn back, if it is
partial to the private state land, the Government can decide following the
existing procedures, i.e. it can be subject to sale, lease, donation, granting
of usufruct right, SLC, or ELC based on land use plan. However, if it is
partial to public state land, the Government can use it following legal regime
such as short-term lease, giving usufruct right, allow temporary occupation or
use by signing agreements.
If
the competent authorities
failed to prove the time entering into occupation or cannot prove disposal of
possession, the claim of the occupant can be honored if:
- That
land is not involved with public interest or does not possess the
characteristic of serving the public
- That
land has not been registered as state land
- The
occupant does run the business on it, and
- Has
correctly fulfilled other required conditions of legal possession
Circular
03 intends to address illegal occupation of state land in
cities, urban areas. To address the above issue, RGC has provided guidelines to
all levels of local authorities and concerned agencies of how to solve the
issue of temporary settlements illegally built on state land in cities and
urban areas by:
-
Gathering accurate data on the number of temporary settlements by the working
group on state land at the municipal, district, khan level.
-
Meeting, reviewing, discussing the rightness of each temporary settlement and
enter data into commune/sangkat mapping.
-Conducting
census of the number of families and population living in the temporary
settlements with the participation of local community representatives.
- Seeking
Solutions for Implementation
Based
on the collected information,
Capital, District, Khan State Land Working Groups, local community
representatives, and adhoc civil societies shall meet, discuss, and find
solutions to the actual case of each temporary settlement by taking public
interest as a priority, and based on the benefits of the majority of the people
within communities as well as the need for local development. To arrive at any
solution, such as relocation, or development in the same area, or any other
policies, the WG shall plan and set time frame for actual implementation and
shall seek approval from CPSLC.
-
Discussion
Arrangement
Any
arrangement shall be based on the solution agreed upon that could be on-site
upgrading if the location is favorable and to discuss with concerned parties to
develop infrastructure development plan and define the approach to begin with,
so that livelihood development can be facilitated. For the location that cannot
pursue the on-site upgrading and relocation is necessary, a clear plan must be
developed prior to implementing any solution so as resettlement of the people
can be facilitated. In any cases, the beneficiariesfrom the resolution of
illegal state land occupation in city, urban area may enjoy usufruct right
following an agreement or property right after having occupied directly and
living subsequently on the location not less than 10 years, or termed leasing
right as defined by concessional rentals. Only special donation case from RGC
that one can enjoy property right without any conditions.
In
brief, any solution arrangements agreed upon by concerned parties must be
accompanied by step by step implementing plan, based on the actual situation.
6. NATIONAL HOUSING POLICY AND TEMPORARY
SETTLEMENT
Article
31 of the Constitution of the Kingdom of Cambodia recognizes and respects the
Universal Declaration of Human Rights, Human Rights related covenants and
conventions under which it says”Everyone has the right to a standard of
living adequate forthe health and well-being of himself and of his family,
including food, clothing, and housing...” In that sense, RGC has committed
to implement the principle of human rights, including the right to decent
housing to reside in by issuing various strategies, such as the National
Poverty Reduction Strategy, Governance Action Plan, National Strategic
Development Plan, and the Rectangular Strategy by giving assurance to the right
to access decent housing.
To this end, the National Housing
Policy will focus primarily on those people who have low, medium income, and
the vulerable groups by putting stress on Supporting Strategy, such as
Participatory Decision Making of Families/Communities in identifying finances
for renovating houses or constructing new ones, Particiaption in Land Use
Planning, Making different types of houses to meet people’s needs, development
of infrastructure and public services for housing, fixing prices of construction
services...
For those who come to reside on the
areas that are exposed to risks or building temporary settlements on state land
in cities, urban areas, action to be taken must be based on the Government
Circular 03 on Resolution of temporary settlements on illegal occupied land in the Capital, cities, and
urban areas. While awaiting the resolution, the Government guarantees the right
to temporary occupation for a specific period, so that necessary conditions for
development planning under forms of on-site development, or relocation and/or
other policy options etc. Hence, prior survey before planning is necessary and
planning must be participatory prior to development. For the survey, data
collection of actual temporary settlements and analysis of the data collected
are necessary in order to identify policy options with community participation.
For the resettlements in new location, necessary infrastructure and public
services should be available, accommodated with appropriate spatial areas, able
to search for jobs, vocational training, so that opportunity for income
generation is improved.
6.1
Participation of Stakeholders in Housing Activities
Housing/resettlement
is a cross-cutting issue related to urban development, land use planning,
construction works, architecture, engineering, public service infrastructure
design, identification of funding/ financing sources, institutional
coordination, policy formulation, rules and regulations, and participation of
stakeholders from all levels ranging from development partners, private sector,
civil societies, and communities themselves.
National
and Sub-national Institutions are tasked to identify appropriate location
for housing and to integrate those locations into land use plan by taking into
account the priority of housing for the poor families and help providing
initiatives to the communities in self-help activities, money savings, help
coordinating with the private sector over resolution of housing issues and provide
support of basic services.
Civil
Societies shall involve in assisting the communities to get to know how to build
their capacities to participate in various decision making, such as community
development planning, resolution of temporary settlements, designing savings
scheme for necessary infrastructure development and services of communities.
Development
Partners and the Private Sector are key partners contributing to community
development through the collaboration with the state and/or with the community
itself, such as designing financing project for repairing and constructing
houses, infrastructure project, and basic services in unorganized settlement
areas, on-site development of the unorganized settlement areas that are
favorable, take part in addressing housing in the areas that the Government
plans to build for those who have medium and low income, etc. based on
contracts.
6.2. Mechansim Arrangement
As
housing activities has big scope, the mechanism to be established as an
Inter-Ministerial Institution shall possess financing sources to study the
status of housing demand and supply in collaboration with relevant
institutions, DPs, CSs, and Private Sector in developing the Strategy or
Policy, or legal framework to ensure the Right to Decent Housing.
This Housing Committee can be of 3 levels,
namely: National, Capital/provincial, and Municipal,
District, Khan adding the composition of commune/ sangkat heads as
members and being the implementers of housing work within their jurisdiction.
The main task of this body is to
study the current situation of housing needs and the ability to supply houses,
land preparation for housing in the short and long-term, strategy, policy, regulationsdevelopment,
and mobilization of national, international finance from development partners,
civil societies, and the private sector. To materialize housing/resettlement
program, at least National Forum on Housing must be organized once a year, so
that the development of Guidelines for implementing various programs/projects
can be prepared, and monitor changes with participation of all stakeholders.The
studies shall also consider various types of houses, a type of stand-alone house,
a type of houses that are built next to each other, a type of houses with
shared walls, a type of series of houses of multiple storeys, a type of
building for rent, a type of residence for public institutions…
6.3.
Financial Arrangement and Financing for Housing
Housing supply is a huge investment on land, basic
infrastructure, and other services. Policy options for financing housing must
implement those approaches that are doable, such as Financial Regulations
Improving Program, encouragement for private sector participation, community
development arrangement, savings scheme, and the creation of opportunities for
increasing income through education, vocational training, commercial loans…
In term of financing, those families who have medium
and low income and vulnerable could form into communities and establish savings
groups that could involve development partners, private sector, NGOs to provide
loans for renovating houses, community infrastructure, or improving family’s
livelihood, or create opportunity for development of new housing areas which
would motivate “self-help” through labor contribution.
Each family or community could also save money based
on contract up to a certain level before they can apply for loans to fill the
gap for purchasing materials from construction enterprises that are supported
by microfinance agents or small financial institutions through payment by installments
with low interest rate. For this, the beneficiary family is required to
contribute laborfor housing construction.
The Government, development partners, private sector,
or NGOs may establish Special Funds for Housing to provide monetary assistance
or housing loans, or buying land for housing construction that the beneficiary
shall pledge something to get loans in return. The Government can also develop
special principle toward those banks that offer housing loans and fixed-term
repayment by installments, not to impose taxes on income gained from interest
loaned by banks, so that interests on the loans are cheaper than those in the
markets. On the other hand, State Bank can also offer loans for housing
renovation or construction by acting as Real EstateCompany, or do it through
Real Estate Companies by requiring mortgaging.
For those employees who have regular salaries and
annual monetary incentives, cash savings in special bank account would provide
fixed interest rate and increasing benefits on property; usually such an
account has a 7-year term; thereafter the account holder could withdraw their
savings for house construction.
Apart from that, savings can be made through Housing
Savings Card selling that poor families can afford to buy the card based on
their earning ability on a daily basis, or at any time, then scratch it to get
the secret number, send it over to the bank that they have opened their account
to credit the amount of the money into their account, and the Government may
provide additional money to a certain level as encouragement for Housing
Savings.
6.4. Arrangement of Housing Program for Low-and
Medium-income Households
In order to make sure that those families who have
medium and low income toaccess decent housing, the Government could:
- Develop Housing Program based on economic strength
by constructing low cost houses for sales with long-term payments by installments,
or granting state land to housing developers based on specific contracts that
after completing the construction, Developers shall offer a number of houses to
the Government as stated in the contract for selling them at low prices through
payments by installments.
- Housing construction for lease for a period from
3-50 years at low prices, or allowing the private sector to join investing on
housing construction for low price leases by providing encouragement to them,
such as reducing import tariff on construction materials and/or on rentals of
the houses. To date, the Government has constructed shelters for a number of
students and teachers, but public residences to be leased to civil servants,
workers, or migrant workers, or leasing state land for developing houses for
the poor has not been considered yet. This would require studies on the current
situation of house leasing to find solutions, and to make sure that housing for
lease, and state land lease can be allowed further to the next generations if
the Government does not need the location for other public interests.
- For those families that have illegally occupied
state land and are required to relocate in new area, a place close to urban
area should be chosen and to build necessary infrastructure before handing over
the land to poor families or communities and to provide housing loans that they
have to repay back over long-term period
- Come up with forestry policy contributing to
housing development by allowing the poor within forestry community the
permission to cut log for house construction with prior approval from competent
authorities.
- Motivate employers to contribute to housing
development, or decent residence with potable water, electricity, sanitation
for workers and employees that this can be dome through the Labor Law.
Apart from applying the existing legal instruments,
it is necessary to amend some regulations and to avail other legal norms, such
as: any regulations related to land management, land readjustment, land valuation,
financial policy and financing related regulations for implementing housing
program, construction, urban planning, and city development and policy options
that give directions to sub-national administration to involve in implementing
them with transparency and accountability
National Housing Policy is the compass that
contributes to the resolution of social issues helping national economic
development, improving people’s living standards, and moving towards achieving
the goals of national poverty reduction.
7. LAND POLICY AND INDIGENOUS PEOPLE
The research concluded that in the Kingdom of
Cambodia, there are about 24 groups of indigenous people who have been living
long time ago on the plateau, in the forests, and on the mountains of some provinces,
especially North-eastern region of the country. A few of the the groups have
lived private lives, following the evolutioh of economy and communications
after January 07, 1979. However, the majority of the groups continue to
practice their different traditions, cultures, custom, beliefs, and languages
of their own tribes and feed themselves by clearing the forest, then burn it
out to get the land for mobile farming, collection NTFPs, and hunting.
The living that is dependent almost entirely on natural
environment, making them vulnerable when socio-economic aspects and climate suddenly
changes.
With intention to uphold the living standards of the
indigenous people, to preserve tribal good culture, custom, tradition, and
belief, RGC is promoting CMDG related to Reduction of Severe Poverty and Hunger
and to achieve general basic education by stating that all IPs shall have their
living standards moving out of hunger and the Government shall provide
education at least basic level of 9 years free of charge to all IP. To achieve
this goal, the IP Policy has been prepared with cautions on land and natural
resource management in order to improve the living standards of IP to move out
of poverty and enhance the quality of life through equitable distribution of priority
natural resources in line with various development programs and projects by collaborating
with national and international partners and civil societies. Besides, the
Government aims to protect and maintain good culture, custom, tradition, and
belief of IP through the formation of IP communities, and granting the right to
possess and use land collectively.
The formation of IP communities and development of their
by-laws which are legally recognized is a self-decision right on the voluntary
basis and collective decision of those IP members. On the other hand, for those
IPs who have no intention to be community members shall also obtain the
ownership and other rights of their land similar to the general population. In
that case, individual land registration shall be undertaken the same as the
land registration of a private individual.
7.1. Possession
and Land Use Rights
Cambodia is a pioneer in
recognizing property right on IP land. Granting land collective ownership is
guaranteed by the Constitution of the Kingdom of Cambodia and the 2001 Land
Law. Article 25 of the Land Law states “The lands of indigenous community
include not only lands actually cultivated but also includes reserved land that
is necessary for shifting of cultivation which is required by the past
harvesting methods and which are recognized by the administrative authorities.
The measurement and demarcation of boundaries of immovable properties of indigenous
community shall be determined according to the actual situation as asserted by
the community, in agreement with their neighbors…” Hence, relevant administrative
authorities to the indigenous community land that represent as state agencies
at the local level shall take part in the process of demarcation of all land
parcels claimed by the indigenous communities. With reference to these laws,
RGC has made a policy on Land Registration and Land Use Right of IP Community
and the Sub-decree No. 83 ANKr.BK, dated June 09, 2009 on the Procedures of
Land Registration of IP Community. Hence, IP who have formed a community and is
legally recognized as a legal person, and is equipped with Internal Rules on
the Management and Use of Collective Land following their tradition could
request the registration of all their land parcels at the Office of Land
Management, Urban Planning and Construction at the Municipal, District, Khan
levels where they are locating at. The land parcels shown by the community that
has been recognized by administrative authorities and neighbors shall be
registered as community collective ownership, except those land parcels that
are involved with complaints from third parties.
Collective ownership includes
all rights and they are protected similar to private ownership such as rights
to inherit, to use, to enjoy usufruct, but the community does not have the
right to dispose any part of the collective ownership which is the public
property of the state to any person or group. Only the community members shall
have the rights to IP immovable property. In case of any member of the
community leaves the community, a suitable portion of the land used by the
community which isunderprivate state land will be transferred to that member.
As for the portion which is belonged to public state land, the community shall
have the right to use and enjoy its fruit according to their tradition.
7.2. Community
Internal Rules:
To ensure the
implementation of rights and land management
of community as being set out by law, communities shall have their internal
rules on the use of the land. The Internal Rules shall specify in detail about
rights on the parts of each type of land and the disposition of the community‘s
propertyin conformity tothe contents in the community‘s by-laws, in case the
community is dissolved. The community’s internal rules shall be developed to
conform to the land use plan and shall be kept at commune/Sangkat hall and
carbon copy to relevant institutions/entities who have signed agreements with
the community concerning the use of forest land, land of natural protected area,
land of mineral area, and other development shall monitor the management and
the use of land of indigenous community to ensure the use of natural resources
productively, sustainably to compy with the existing law and legal norms.
To become a member of a community is self-decision
right of indigenous people. In case that an indigenous person has private land
ownership or has legally possessed a portion of private land and willing to
become a member of a community, the person shall sacrifice her/his private land
to put it intothe collective ownership of the community and that land is
considered a part of private state land.
7.3. Land
Use Planning of IP Community
Land use planning must
involve the community and shall be publicly disseminated in order to ensure effective land use.
Indigenous People could not change, or be forced to leave the land which the
community has been occupying and using as
collective ownership, only if there is a need for national interest or immediate
need of the nation. This change could be made possible by implementation the Regulation on Resettlements. All of the
indigenous people, whether or not they are member of a community shall also
receive protection against violation
over their tradition or advantage taking over their little knowledge on pocession
right and land use.
In summary, RGC will continue
to protect and register lands of the indigenous people as collective ownership following
the existing legal procedures and increases attention to:
-
Building awareness and respect the multi-cultures of the
indigenous people;help establishing communities, providing knowledge onpreservation
of good cultures/traditions, and land use as well as natural resources to
ensure the sustainability of socio-economic development.
-
Living standards and livelihood are to be improved through
agricultural education, health system development that is well suited with the
culture, general education and skills, development of appropriate infrastructure to meet
priority needs, introducing good culture and tradition, and using dialects by
area of indigenous people into curriculum of education, news programme, TV and radio,
especially the news related to socio-economic and cultural development.
-
Develop measures to reserve the
right of the indegenous people for their traditional land and natural resource
use and comply with the regulation of forestry management to ensure economic benefits
and community development through consultation and attention given to the
comments made by all indigenous people.
-
Study/research/document the
cultures, traditions, customs in order to develop the cultural center of the
indigenous community aiming at protecting their good cultures, traditions, customs,
dialects, knowledge, belief system, weaving handicraft, achitecture, textiles
and other arts of tribal ethnic.
8. LAND AND GENDER POLICY
Gender equity in the domain of land is to
provide similar supports to both women and men in accelerating the speed of
implementation of the three sub-sectors, namely land administration, land
management, and land distribution. The achievement of the gender equality in
the land sector will surely respond to the common vision of the land.
Gender
Equity Policy implementation of the Royal Government of Cambodia considers women
as the backbone of the economy and society as stipulated in the Rectangular Strategy
phase II of RGC to increase employment, equity and efficiency. In the updated
NSDP of the Kingdom of Cambodia, to reduce poverty all ministries and institutions
have been working hard in promoting the implementation of the plan to make sure
that Cambodian people both male and female living and enjoying reasonable
benefits of socio-economic growth with transparency and equity. So far, there have
been some challenges in term of women participation in the land sector, such as
not paying attention in depth on equality between women and men yet, thus there
has been a number of problems caused by unequal use of rights between women and
men, and mostly women are victims of losing their rights to occupy and use land
more than men. For women headed households, they may be more vulnerable if
female participation in the land sector is lacking, especially that would
affect the effort of RGC in accelerating the speed of economic growth and
better social development.
In
order to achieve the gender equality in the land sector and to gain benefits
equitably between male and female in the process of land registration, access
to land information, and in land ownership or possession right, and to increase
women participation in decision making, monitoring, and implementing land
sector policy, plan, and initiative in the land sector, the principle and
activities to be taken include:
1. Both women and men shall have equal access to
information on land policy, and land administration related laws (land
registration, conflict resolution, land market…) all levels of land management,
land distribution, and resettlement.
2.
All activities or programs in the land sector to ensure that women will receive
equal benefit from those programs and activities.
3.
Land ownership registration or issuance of certificates acknowledging the owner
of an immovable property [land title] shall clearly identify that it is the
joint ownership of husband and wife, or their separate ownership, shall be made
with female participation and is based on legal and social aspects to ensure women
and men’s rights over immovable property as well as the protection of benefits
of both husband and wife, and to provide additional protection on the right of
each spouse regarding ownership title.
4.
For women headed households who have land titles, they would be able to
increase their women status in the society, and they can usetheir land titles as
collaterals to get loans for income generation activities in addition to their
farm work in the rice fields.
5.
Both men and women shall receive equal opportunity to share their comments, to
involve inimplementation process, in development, and getting equitable
benefits in a transparent manner in the land sector.
6.
Encourage women to be representatives in all commissions and committees in the land
sector and in leading positions at all levels as well as in those positions
which will be created.
7.
To strengthen the management capacity of all levels of authorities and
shall disseminate the general knowledge, particularly for women including the
vulnerable groups such as poor farmers, indigenous people, and families of
deceased and disable soldiers about land rights (ownership rights and other
rights), types of land ownership and land use as well as other legal
instruments related to land.
8.
All the works of land management and urban planning, especially planning
and/or master planning of land use or other development planning has to involve
all stakeholders, especially both sexes of the people living in the area to
ensure transparent and effective land management, land protection, land and
natural resource use and to respond to decentralization and de-concentration
policy.
9.
Land distribution, especially through social land concession as well as land
distribution for poverty reduction by other means, such as donation,
resettlement…shall be undertaken with equity that improves work equality
between women and men.
10. In the land sector, short,
medium, and long-term Mainstreaming Gender Strategic Plan shall include Capacity
Development Strategy, so that the knowledge on land can be transferred to all
compositions of the society, especially women headed households and indigenous
people. This plan shall be accommodated with clear monitoring and evaluation
from concerned ministries and institutions.
In Cambodian context, many poor
families in the rural area did not register vital records such as marriage
certificate, separation certificate, spouse disappearance confirmation etc.
These vital records are necessary for identification of property’s owners.
Therefore, there must be a joint study between MLMUPC, Ministry of Interior,
Ministry of Women’s Affairs, and Ministry of Justice over legal aspects that
would be able to facilitate those families, so that they have sufficient
documents for completing land registration and/or for proper and on time
subsequence registration as required by existing laws.
9. LAND POLICY FOR ARMED FORCES DEVELOPMENT ZONES
To
contribute to the implementation of the White Paper on National Defense 2006 as
well as to contribute to the strengthening of peace, security and social order
and to strengthen the rules of law for socio-economic development and poverty
reduction, the Royal Government of Cambodia has taking into account the needs
for land in different areas and/or reserve as military development zones, for
military services, including resettlements of demobilized and/or disabled soldiers,
and for all the families of those soldiers who have sacrificed their life for
the nation. The policy of the Government is to have a clear development plan
for the base and open space of armed forces involving them in the general
framework of land use planning and state land management. In general, border
areas are most suitable for military zone development.
9.1. Policy and Actions of Military Zone Development
To
achieve the abovementioned goal, the principles and activities to be taken have
to consider the following aspects:
1. The land in the military
development zones can be used for: (a) Camping and/or military base, (b)
military families zone, retired soldiers, life sacrificed, disabledsoldiers, or
soldiers who permanently losetheir ability to work for development purposes
(agriculture, agro-industry), for (c) constructing Disable Soldier Development
Centre, and (d) for military operations.
2.
The land inside the military development zones should be managed effectively
through: (a) inventory of state immovable property, except the land that has
been granted as private property with the good and close cooperation between
the Ministry of Land Management Urban Planning and Construction and the
Ministry of Economy and Finance, and (b) Resolution of all land disputes
occurred inside the military development zones.
3.
The natural resources management inside the military development zones
shall cooperate with all relevant authorities, including local authorities,
Ministry of Agriculture Forestry and Fisheries, Ministry of Environment,
Ministry of Cultureand Fine Arts, Ministry of Interior… as stated in the White
Paper of National Defense in order to contribute tothe prevention of offences,
such as illegal fishing, destruction of inundated forest, forest, illegal land
encroachment, destruction of environment, and to involve in tree planting,
conserving and protectedforest, cultural heritage, and national patrimonies.
4.
Military Development Zones shall cooperate with the relevant ministries in (a) establishing
military family villages along the borders, (b) establishing development
villages[1]for
disabled soldier, (c) establishing the zones for retired soldiers, families of
life sacrificed and disabled soldiers.
9.2. Next Step
Demobilized
soldiers are also the target to receive land among those people who have
been selected for
receiving social land concession.
The plan for Royal Army reform has
raised the policy of keeping the size of military troops (on alert troops) at
peace time within which the Ministry of National Defense must (1) Communicate
with relevant ministries, seeking land for army units to work on, to produce
crops to feed themselves, and to increase their standards of living;(2)
Collaborate with various companies, investing in agro-industrial crops both to
maintain the army troops, and to contribute to the development of
agro-industry.
The Council for Land Policy which is also
composed of Ministry of National Defense and Ministry of Interior shall think
about the development zones for armed forces to respond to the abovementioned
zones within the framework of land administration, land management and land use
planning, as well as land distribution at all levels.
10. ESTABLISHMENT OF IMMOVABLE PROPERTY VALUATION
SYSTEM AND TAXATION POLICY ON LAND
10.1.
Policy and Legal Framework of Immovable Property Valuation
The preliminary document of Land Policy Framework of RGC dated September
06, 2002 specifies about the requirement of land valuation for public buying
and selling, seizing, compensation, taxation, and for the functioning of land
markets. The document indicates that Land Valuation and the Valuation of other
Properties attached to land is a skill that requires training, documenting
several key data/information about the income from that property, and other
conditions influencing the land parcel. In July, 2009 a Declaration of RGC on
Land Policy requires the preparation of participatory, transparent land
valuation system of official recognition. Several other laws and regulations
such as Civil Procedure Code and Civil Code, Law on Financial Management, Law
on Expropriation, etc. also present the necessity of the establishment of the
mechanism for official and transparent valuation of immovable properties, so
that laws and regulations can be effectively and fairly enforced.
10.1. Policy and Objective of Immovable Property Valuation
The
Policy for Immovable Property Valuation is critical in giving directions to be
implemented, so that a system can be established to serve the needs of public
and private sectors.
The
objective of the National Policy on Immovable Property Valuation is to document
the methodologies of estimating the prices of land and construction attached to
it parallel to market prices, to establish land and construction price mapping
in order to respond to the needs of public and private sectors. Thus, it entails
developing legal norms related to land and construction valuation, mechanism
for undertaking immovable property valuation, and publicly disseminating the
valuation results in a transparent manner in such a way that is credible and
acceptable to stakeholders.
10.2. Methods for Immovable Property Valuation
In
general, the public sector needs an immovable property valuation system for
immovable property tax collection and compensation payments by using General
Valuation Method which is the valuation of immovable properties located in any
jurisdiction, subject to similar market influences at any given time. For the
private sector, Specific Valuation Method is often used. It is the valuation of
each immovable property of a customer whena property is sold, bought, leased,
and transacted, offering loans, a mortgage is pledged, insuring investment,
debt payments, court decision’s enforcement…etc. Due to its complex nature of
valuation, 2 steps shall be followed to undertake the valuation, i.e.
-
In the first step, the valuation procedure that is simple,
easy to understand, easy to implement, be identified and used by selecting
minimum techniques and standards of valuation to form database with support of
computer system. Also, professional capacities of implementing officers have to
be strengthened and expanded, to develop Code of Ethics for Valuation, select
minimum standards of International Valuation for gradual implementation and be
integrated into Land Information System.
-
In phase 2, the methods for scientific valuation that
are based on techniques and norms in the region shall be implemented from one
year to another until such a time of international recognition and the
establishment of Valuers’ Association of similar skills compared to those in the
region.
10.3. Requirement and Effectiveness of Immovable Property
Valuation
In
the context where Cambodia is a member of ASEAN and WTO, and soon to be a
member of ASEAN Community in 2015, it is necessary to develop Methodology,
Mechanism, and detailed implementation process of immovable property valuation
in compliance with international norms and put it into use.
The
National Policy on Immovable Property Valuation System that is participatory
and accurate would primarily contribute to economic development and would make
public and private investments more transparent and effective. The
implementation of transparent procedure of immovable property valuation would
increase customers ‘confidence, attracting more people to pay taxes to the
Government, and would also minimize property off-record transactions or tax
evasion. In brief, property tax collection, setting any fees of public services
related to immovable property would increase fixed income to national budget,
and eventually the drafting of the Law on Preemption would be able to further
improve filing of tax-returns on immovable properties. On the other hand, an
accurate system for property valuation would encourage the private sector to
invest in real estate, and the efficiency of the system would contribute to the
prevention of land speculation, help maximizing the potential of land use, and
ensure equity in collecting taxes into the national budget.
10.4.
Current Status of Land Taxation
According
to the Law on Finance, the provision on taxation specifies tax on unused land,
tax on properties which is annual residential taxes in the Capital and cities
that requires a property valuation system of legal structure and framework,
accommodating with institutional roles and responsibilities, procedure, method,
and technical specifications, plus detailed guidelines for implementation.
Therefore, the regulations pertaining to methods and technical specifications
of land valuation, valuation of constructions on and under the land across the
country are key documents that need to be developed in the meantime.
In
many countries, land taxes provide a fixed income not only for the national
budget, but it is a policy tool to improve land use as well. However, in the
context of Cambodia where many of the properties are yet to be registered, the
strengthening of the security of land tenure would be endangered if there is no
appropriate policy for implementation. This in turn would discourage the people
from registering their land or could lead to adverse impact on the poor who
cannot pay taxes. It is in that sense that the Head of RGC decided to impose
taxes both on the registered and non-registered immovable properties in the
Capital and cities, and allow free tax for owners of property of value less
than one million riels. Annual tax payments based on tax-returns of property
owners is a very good method that would contribute to the collection of income
for the Capital, cities, and promote decentralization in public service
delivery as well. Nevertheless, tax collection that is based on tax-returns
filed by property owners does not reflect the equity and transparency of tax
collection for the state yet as some property owners did not care and did not
declare their properties, and where actual punishments from such a practice
have not been embedded in any clear legal ground yet
10.5. Implementation of Tax Rate on Immovable Property
So
far, the collection of taxes on unused land could be undertaken to a limited
extent. Those who own large lands always find ways to avoid paying this kind of
tax. Also, tax collection both on unused lands and land transfer tax still
remain a big gap between the true and the actual transacted prices due to too
high tax rates setting. In Phnom Penh, the undertaking of charging transfer tax
is to impose lower than the too high rates. The document on Strategic Framework
of Land Policy of RGC in 2002 proposed that “To make sure that Stamp Tax on
unofficial Land Transfer (buying/selling) could be collected into the official
system, eventually new tax rates should be considered basing on regional factor
or target of land use that shall be implemented. For example, low rate (1% or
lower) could be considered for rural agricultural land and 1.5 to 4% for
commercial areas in urban areas that might be developed “. Otherwise,
this is just to further strengthening the use of unofficial markets”.
For
the sake of the benefits of the national budget, fixing stamp tax and other
taxes relating to land, the Law on Finance should allow the Minister of MEF the
right to determine the ratio over tax rates using it as a basis for calculating
annual taxes. For example, the 4% stamp [transfer] tax in the Law on Finance,
the Minister of MEF to have the right to determine the ratio in computing taxes
just 30% of 4%, or 50% of 4% in those geographical areas of sub-national
administration which is subject to different influences of property markets. For the Cambodian context where the majority
remain poor, inheritance transfers by court decision or sentence (except
confiscation following by auction), and the issue of stamp tax rate necessitate
a study to look at them, meaning that the possibility of the development of Land
Taxation Law or Immovable Taxation Law that can be split from the provisions on
taxation of the Law on Public Finance in order to gather all aspects related to
land tax obligations for analysis and to issue regulations for comprehensive
implementation and to more or less well in line with countries in the region.
11. LAND
POLICY AND CLIMATE CHANGE
Climate change,
especially global warming caused by excessive use of natural resource potential, population growth and industrial growth
contributed to the increase in the temperature, heat waves, land barren from
drought, the melting of ice cap, increasing sea level, floods etc. This change
is a big global issue which encounters the livelihood and economic development.
Cambodia will also be impacted by climate change such as floods, drought which
threatens food products, food security and the whole agricultural sector.
Therefore, it is necessary to adapt to the global warming and make an effort to
reduce climate change by reducing severe environmental impacts—a strategy to
respond to the above mentioned challenges.
Cambodia is a signatory of UN Treaty
1992 on Climate Change and Kyoto Protocol 1997. While Cambodia is developing a
strategy to compromise and weaken the consequences of climate change, Earth
Summit Rio+20 in 2012 issued a new principle focusing on Green
Development. This principle is based mainly on four key poles: (1) promotion of
green economic development which applies
to the effective use of natural resouces in a sustainable environmental manner
(2) stabilization of environment through clean development without polluting
the environment, protection of water quality, soil quality and air quality,
safety of ecological system, assurance of food security and sustailable natural
resource management (3) promotion of social safety through promotion of public
health, environmental quality and sustainable livelihood, and (4) conservation
of natural culture by preservation, conservation, protection, modernization and
integrating of cultural heritage through culture diversification, and culture evolution,
tradition, and way of life which protects and promotes the national prestige
and identity.
National Strategic Plan on Green
Development which aims to reduce and prevent environmental pollution as well as
protection of ecological system will contribute to poverty reduction, increased
public health service, assurance of food security, promotion of national
culture, and contributing to the preservation and protection of sustainable
planet. Draft Cambodia Strategic Plan on Climate Change 2014-2018 will be
developed and approved during 2013.
Obviously, the relation between
Climate Change and land tenure is complex and indirect. Effects of climate
change such as severe rainfall, long-term drought caused by soil erosion,
unusual decrease in groundwater—natural disasters will bring about the change
in ecological system, land potential, decrease in soil quality as well as loss
of agricultural land which may cause the migration of villages or residences.
In addition, many other phenomenon that influence economy and society include a
storm and forest fire destroying residences and crops. Thus, ready measures are
highly considered and a new settlement is facilitated for those living in the
most vulnerable areas to ensure survival and livelihood.
With regard to Land Management,
MLMUPC will develop a sector policy related to Climate Change to be
incorporated into National Strategic Plan on Climate Change. Besides, land
tenure security, land use planning, and land conflict resolution, land
administration and land management will take care of means to eradicate the
vulnerability of Climate Change and push for the implementation of land use
planning, aimed at reducing Climate Change and settlement.
In brief, in the context of Climate
Change, land policy shall emphasize mainly the reduction of risks of natural
disasters and risks for food supply. Therefore, capacity building and
international cooperation are required to reduce climate change and natural
disaster management.
12. LAND
POLICY IN THE REGIONAL AND INTERNATIONAL FRAMEWORK
Cambodia
belongs to the ASEAN community—a potential region of the world. As a
signatory of
International Declaration of Human Rights and Good Governance on environment,
land and water resouces etc. Cambodia will establish principles, law and
internal regulations, in accordance with regional and international principles
on cross-border resource management, population movement management,
coordination and strategy for preventing Climate Change. This entails
international support on norms for management and capacity development by
keeping the basic law and cultural inheritance.
Compliance with regional and
international principles and law is a State obligation which is not forced or
imposed, but benefits investment on socio-economic development. Land Policy of
RGC in the regional and international framework is an effort to achieve a
strategic objective—especially the provisoin of land for subsistence, assurance
of health and well-being. Without relation to the national integrity, the
independent State shall endeavor to:
-
undertake the regional and international
principles by reducing the gap on land policy implementation
-
coordinate policy, law and norms related to
land and natural resources to keep them in harmony in ASEAN region
-
develop a joint development plan, especially
at the border areas with partner countries to establish transit management
protocol, information sharing and natural resource management.
-
push for survey and boundary demarcation
along borders with neighbouring countries to make border areas friendship and
cooperation areas; and
-
motivate the establish of norms relating to
reduction of cross-border barriers of citizens and labourers in the framework
of ASEAN Community, one Destiny.
13. ENFORCEMENT
OF LAW AND NORM
After accomplishing the
Strategic Framework of Land Policy, Council for Land
Policy and Ministries/Institutions have
developed and issued laws and norms. The implementation of policy, law and
norms related to land is yet highly effective, which may be caused by limited
dissemination to the local level, poverty, and peopls’s low knowledge of laws
and limited professional knowledge of local government officials. In this
context, it is essential to cooperate in organizing education and dissemination
programs of existing legal framework related to land as a chain to the local
level. Besides the awareness raising, administrative measures shall be
implemented in general to ensure equality among all the social classes before
law. These measures contribute to the rule of law through land sector.
Apart
from the existing ordinance, relevant Ministries/Institutions shall continue
developing law and norms to fulfill development needs ahead and/or amend law
and existing provisions by sector and discipline to smooth and coordinate the
effective implementation.
Law
on pre-emption, law on land reclassification, construction and urban planning
code, law on surveying and map production, law on agricultural land management,
law on management of state properties, law on tax on immovable properties and
other laws related to traffic and other ordinances shall be on the agenda for
consideration.
MLMUPC
has updated the Law on Land Management, Urban Planning and Construction 1999
and Land Law 2001 in which Articles related to private entity and ownership
regime are taken out since Civil Law has already stated the details. In
addition to the amendment and development of new law to fulfill the requirement
of socio-economic development, other legal frameworks need to be established as
below:
-
Subdecree on Provincial/Regional Land
Management
-
Subdecree on Master Land Use Plan and
Municiple, District, Khan Land Use Plan
-
Subdecree on urbanization in the Capital,
Municipality, Urban Areas
-
Subdecree on builing, repair and demolition
permit
-
Determination of standards of subsequrent
land registration
-
Implementation of Procedure for mortgaging
-
Land Use Planning, Land Management and Urban
Planning
-
Procedures for Converting Land Use…etc.
The mission of
MLMUPC is to carry out and monitor the implementation of law and land programs by
focusing on the strengthening of Capital and Provincial level and transfers
duties to the sub-national level, in
compliance with Decentralization and Deconcentration. In this context, the
Subdecree on State Land Management delegates the management and update of the
data system of maps and state land to State Land Management Committee to take
actions against encroachment upon state land together with State land
management authority. In the framework of monitoring and evaluation on the
implementation of law and ordinances related to land, the mandated
Ministries/Institutions shall:
-
consult all levels sub-national authority and
provide land use related documents to local authority to participate in the
monitoring implementation
-
push for participation from competent
institutions, civil society and local community in spatial planning to
determine zoning, according to the natural characteristic of soil and
development need, in particular economic potential areas and priority areas
- implement
partnership between the economic concessionaire and local community or small
and medium landholders in the area or social concessionaires nearby to become
real partners to complement each other to gain mutual benefits.
14. CAPACITY BUILDING AND INSTITUTIONAL COORDINATION
To guarantee the effectiveness of
implementing land policy, the development of skills
and techniques related to land administration
and land management is a prerequisite. Besides, needs for Human Resources of
high skills and techniques, officials who have legal skills are needed to formulate
legal framework to align all norms of the Ministry to ensure consistency and
smooth implementation with other Ministries/Institutions. In addition, the
strengthening of professional skills, disciplines, code of conduct as well as
an incentive shall be specially taken into account.
With
regard to institutional development, MLMUPC has provided refreshment and
training courses continuously to the officials at the central level, provincial
level and office level on law and norms, cadaster, land management, land
dispute resolution, land distribution and land-related policies. However, the
dissemination of the existing law and norms and technical skills are not yet
responsive to the evolution of the social situation.
In
order to expand and strengthen professional capacity, MLMUPC in cooperation
with GIZ and Royal University of Agricutlure has established FLMLA to provide a
Bachelor Degree Programme in land administration and land management. FLMLA has
also conducted an annual workshop supported by Technical University of Munich
in Germany. Besides, the Ministry has operated a school of professional
training for diploma in cadaster and land management at Prek Slek, Kandal
Stueng district, Kandal Province and organizes regular training programmes for
officials from the provincial departments and offices. Furthermore, several
officials received scholarship to study abroad via international cooperation or
to participate in international meetings related to land sector.
Regarding
institutional arrangement, Council for Land Policy has its General Secretariat
located within the MLMUPC. The Secretariat follows strictly the principle of
consultation, coordination, and finds the concensus in developing norms or
implementing measures related to land use. Nonetheless, the implementation of
law, norms relevant to land use both state-owned and privately owned is still a
challenge, which is probably caused by limited knowledge of people, and the
implementation is not yet comprehensive.
15. CONCLUSION
Land
reform through the Council for Land Policy is indeed an important role for
reducing poverty in an agrarian country. However, what is uncertain is we don’t
have valid national data on the number of landless people or of those who are
truly lacking of land.
Research
using econometric specification of UNDP in collaboration with Supreme National Economic
Council (SNEC) that is based on the Theory of Modeling Analysis of Households
who practice farming reveals that the poverty risks of poor families can be
reduced when there is growing ability of land use, especially when there are
guarantees through issuance of ownership title. The analysis has also found out
that apart from land improvement, the development of irrigations system and a
number of other variables of strong influence include household composition and
business. Hence, land reform provides high potentials for poverty reduction,
but there is a need to connect it with other reform programs, especially
agriculture and career creation program.
CONSULTATIVE
DOCUMENTS
Constitution of
the Kingdom of Cambodia 1993
Civil Code 2007
Land Law August
dated 30, 2001
Forestry Law
dated August 31, 2002
Law on Protected
Areas dated Feburary 15, 2008
Glossary
Agricultural cooperative
Flood :
increase in the water level which is higher than usual. For example, in the
rainy season, the water level in Tonle Mekong is not higher than 11 m in Phnom
Penh since Phnom Penh water level is 10.20 m at Russey Keo station and 11.50 m
at the bottom of Chroy Changva Bridge.
Drought : level of groudwater falls down unusually, which is
caused by drought many years continuously. This makes plants impossible to
absorb water for support.
Famine :
the process of scarcity
of food or starvation
Geo...... :
the study of earth and
farming
Security :
the promise of something
to a lender
Leaser : those who receive any
security or obligation by having right to use the security or the object but
shall keep its origin when returning to the leasee or owner.
Leaseholder : a party of a contract who has to pay for rental to acquire right to use
and enjoy
an object of the leaser.
Lease : a contract that one party allows another party to use and enjoy an object
through payment.hjhgj
Geology : science of studying the earth (solid objects, land and mixture of rocks of
earth) formed through historical changes of climate, components and evolving
process such as tectonics. Currently, geology is important for trade and for
exploring minerals underground and estimating the natural accidents.
Dead Persons :
those people who pass away
Scale : size, level,
amount, range, type as basis for adjudication
Acquisition : receipt of or the turning into an owner of an
object through own job, purchase or exchange.
Real Right : right to manage an object
that can be claimed against other individuals
Mandate : period of time whch is
determined by law
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