Working Paper Vietnam Customary Land Tenure Study Study Team: Bui Quoc Toan, Elke Foerster (Co-team Leader), Nguyen Van Chien, Thu Nhung Mlo, Thu Nhung Mi Duon Du, Ulrich Apel ( Co-team Leader), Vuong Xuan Tinh East Asia and Pacific Region, 1818 H Street NW, Washington, D.C. 20433 May 20, 2004 This Working Paper was prepared on the request of the Rural Development & Natural Resources Sector Unit of the East Asia & Pacific Region of the World Bank The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the view of the World Bank, its Executive Directors, or the countries they represent. Table of Contents INTRODUCTION 1 Background 1 Definitions and Precepts 2 Goals and Objectives of Customary Titling in Vietnam 3 Scope of Customary Titling in Vietnam 4 RESULTS OF FIELD STUDY AND LITERATURE REVIEW 6 Nature and Dynamics of Customary Tenure Systems in Vietnam 6 Concept of Statutory Rights in Vietnam 8 Customary Rights vs. Statutory Rights: A Comparison 9 Pilot Implementation of Issuing Land Use Certificates to Communities in Vietnam 10 Discussion 12 PROPOSED DECISION PROCESS 16 IMPLICATIONS OF APPLYING THIS DECISION FLOWCHART 19 Required steps for providing customary titles 19 Implementation Issues and Required Policy Decisions 20 TOWARDS IMPLEMENTATION OF CUSTOMARY TITLING 24 Defining Investment Scope and Geographical Development Priorities 24 Next Steps for Implementation: Covering Gaps of Knowledge 25 Review of Potential Project Components supporting Customary Titling 27 Summary of recommendations and follow up 27 REFERENCES AND SUGGESTED READINGS 30 GLOSSARY 34 As a partial disclaimer, within the study team we have been able to agree on the need to address customary titling. For some issues, however, different opinions prevail, and the team has tried to note them as such in this report. As final editors, the co- team leaders take responsibility for any errors and omissions. I N T R O D U C T I O N B a c k g r o u n d 1. Since 1986, after several decades of a centrally planned economy, Vietnam has embarked on a far-reaching reform program ("doi moi") which has had a remarkable economic success. The introduction of market principles, the abandoning of major price controls and the reversal from collective to household farming have led to strong economic growth, elimination of widespread hunger, and the reduction of macro-economic imbalances. This success can be in large measure attributed to the comprehensive land allocation programme which has been pursued by the Government of Vietnam (GoV) since the start of the doi moi policy. Allocation of agricultural lands has almost been completed, along with the expansion of administrative structures for land management and administration1. Allocation of forest land, however, proves to be challenged by competing demands of existing users for agricultural and forest uses and a more complicated regulatory framework thus having been implemented at much slower pace. The 1993 Land Law provided a broad framework for giving local people extensive use rights over agricultural and forest land. The Law stipulated that long-term use rights should be issued for most land to non-state entities, including households, individuals, and organisations. Customary groups, i.e. village communities, hamlets or groups of households, however, were not considered a legal entity and were thus not eligible to receive land titles. This restriction hampered the effectiveness of the land allocation process, in particular in mountainous areas with a high percentage of ethnic minority groups where customary tenure systems continue to function. The recently revised Land Law (2003)2 addresses this issue and for the first time permits issuance of land use titles to such customary groups3. This option has particular relevance for customary groups of ethnic minorities, where there is still a strong tradition of community-based resource management. Furthermore, it is regarded as a chance for creating significant economic gains, if not a second economic leap, by improving the economics of forest land use. 2. The purpose of the study is: - Explore suitable implementation strategies for large scale customary titling through analysis of existing information and knowledge concerning customary tenure systems and experience gained with pilots on customary titling in Vietnam (chapter 2); - To develop a decision flowchart defining the criteria for customary titling taking account of the findings and conclusions of the analysis (chapter 3); - To outline a practical approach on how to move forward towards customary titling and to examine opportunities, constraints, and implications for Government support and service systems (chapter 4); and - To sketch the way ahead identifying existing gaps of knowledge and next steps necessary for an effective implementation strategy (chapter 5). 3. Within the framework of this study a small (15 day) field survey and literature review has been conducted in the Central Highlands. Details of this survey are documented in Thu Nhung Mlo, 2004. The study results rely on the review of secondary source material on the use of forest land by ethnic groups in Northern Vietnam (Vuong Xuan Tinh, 2004) and draw from the experience of organisations/projects working in Vietnam. The study also incorporates a review of constraints and 1 Establishment of Ministry of Natural Resources and Environment (MONRE) according to Decree 91/2002/ND-CP, dated November 11, 2002 2 Land law: 13/2003/QH11 dated 26/11/2003 and will be effective from 7/2004 3 The practicability and appropriateness of the new policy will very much depend on the implementation guidelines of the revised Land Law, which are presently being drafted and scheduled to be completed by 7/2004. 1 opportunities in current land use practices (Bui Quoc Toan, 2004) and a review of the legal framework and administrative issues for forest land allocation (Nguyen Van Chien, 2004). International experience in implementing allocation of forest land has been reviewed by Elke Förster and Ulrich Apel who are also responsible for the compilation of this report. D e f i n i t i o n s a n d P r e c e p t s 4. Ownership is defined in the Vietnamese context as the legal right to property, thus, ownership of land remains with the state. The state allocates usufruct rights, i.e. rights to use and enjoy the benefits of this property during a certain period of time4. These benefits include the rights of transfer, lease, exchange, mortgage and pass on land for inheritance. According to the Vietnamese Constitution, the state can only allocate use rights and not property rights, because land is a common property. Land tenure is different from legal ownership and denotes that land is held or occupied either legally or traditionally by an entity. 5. Customary tenure systems exist in many countries with significant rural populations where access, control and use of land are determined through long-standing principles defined as "customary law" that operate outside the formal, or state, legal system. Customary systems are associated with traditional land administration institutions and customary law that define how rights are ruled, allocated, and preserved. A characteristic feature of customary tenure systems is that the land use is regulated within the community, and that individual and market exchanges are usually limited to community members. Such systems are prevailing in many areas dominated by ethnic groups with largely intact traditional social structures. However, it is important to note that customary tenure systems typically have both collective and individual dimensions. The collective aspect relates to the community vis-à-vis outsiders. The individual or internal dimension is about transactions, successions, and exchanges of family plots between community members. The term customary is used in this study to refer solely to the collective dimension of these tenure systems. Individual land use rights in Vietnam are long endorsed by the state and titling of individual rights is clearly regulated, whereas community and group tenure is yet to be formally sanctioned and thus the focus of this study. 6. Statutory rights are regulated or imposed by law established by a legislative body resulting in legal precedents and implications for land use. In Vietnam, statutory rights to land tenure and the privileges and obligations pertaining to these rights are broadly defined in the Land Law and specified in related Decisions, such as Decrees 02/1994/ND-CP and 163/1999/ND-CP. The use rights include the rights to exchange, transfer, lease, mortgage, and pass on land for inheritance and are certified with a Land Use Certificate (LUC)5. For forest land, the use rights extend over a period of 50 years.6 The land use rights are restricted by the GoV predetermining the land use purpose through land classification into categories (agricultural, non-agricultural, and unused land) and sub-categories (e.g. for agricultural land including three forest sub-categories, i.e. production forest, protection forest, special use forest). 7. Customary titling can be understood as (a) the option to egalise customary claims in full l accordance with customary law, which entail different rights than statutory titles, and may even be administered separately, or (b) the option to provide statutory long-term land use rights taking account 4 However, a legal entity allocated with usufruct rights to land is called chu, which is usually translated as owner. 5 In Vietnam, the LUC is provided in the form of a Red Book Certificate (RBC). It needs to be distinguished from a "Green Book Certificate", which confirms contractual sub-letting of forest protection obligations and short-term use rights, but no long-term use rights. 6 However, land use by community are not limited by any specific duration (Art 66 of the Land Law 2003). 2 of customary tenure systems to village/hamlet communities and groups of households for land areas within the boundaries of an administrative unit (village/commune), and (c) the option to provide for allocation of an entire geographical area for an ethnically defined group (e.g. autonomous zones or reserves as found in the international context). The difference between the first two options is very important: in the first option, titling in full accordance with customary law and traditional practices is likely to ensure high acceptance by customary groups but might not be in line with the objectives of land allocation of the state (e.g. land mobilisation, biodiversity conservation). The second option will provide statutory titles that are not fully in line with customary practices and may thus have a lower acceptance with customary groups. On the other hand, the state can better ensure the achievement of its objectives for land allocation. This dilemma originates from the difference between customary tenure systems as a local solution for sustainable land use and statutory rights established by states for large regions as solutions for complex national and international phenomena. The gap between customary and statutory rights can be narrowed, but differences will remain as the rationales for these rights are different. 8. A community is defined according to the Land Law as a group of Vietnamese who live in a same village or hamlet (thon, ban, buon, lang, som, doi, etc.) and have the same customs and habits or family clans (Article 9.3). According to Vuong Xuan Tinh (2004) a community can be understood as a group of households formed voluntarily within the administrative boundary of a village and characterized with distinctive customs and habits that form the basis for a certain degree of self- management-. Different from communities are social and collective organisations such as mass organisations (Women Union, War Veteran Union, Youth Union, etc.) and economic production units such as cooperatives. G o a l s a n d O b j e c t i v e s o f C u s t o m a r y T i t l i n g i n V i e t n a m 9. Customary titling is to be promoted by the Government of Vietnam (GoV) through the revised Land Law. The clear definition of goals and objectives of customary titling is essential for an outline of strategies and criteria for implementation. However, the goals of the GoV regarding customary titling (and the international donor community's understanding of these) have a certain degree of inconsistency. There is no official document that clearly articulates these goals. A review of the different goals of customary titling from a composite of various sources reveals a multitude of objectives which are potentially contradicting. They can be structured along environmental, economic and social objectives: (i) Environmental objectives: - It is assumed that customary titling provides the basis for improved forest land management, protection of existing natural forest resources, thus (a) increasing of forest cover (in line with Vietnam Development Goal (VDG) 7: Ensure Environmental Sustainability, Target 1: Extend forest cover to 43 %) and (b) enhancing forest quality for environmental reasons, e.g. for better watershed protection functions, biodiversity. (ii) Economic objectives: - Customary titling contributes to poverty alleviation through assuring access to productive resources (VDG 1: Reduce percentage of poor and hungry households); - Reduction of costs for the community (for enforcement, for facilitating changes in land tenure and land use, i.e. through "land reserves"); - Reduction of costs for the state (allocation, monitoring and control of compliance with the regulatory framework). Experience suggests that customary titles that are administered internally in a transparent manner can provide tenure security at a fraction of the cost in situations where there is no clear demand for demarcation of individual plots. Community based forest management is regarded a viable alternative to state/private forest management. 3 - Higher effectiveness and sustainability of state investments for support and facilitating changes in land use if funds are administered by local communities; - Including communities into the land markets and thus facilitating of market mechanism in land transfer; and - Access to credits for communities by using the title as a collateral for loans. (iii) Social objectives: - Reduction of ethnic inequality (Vietnam Development Goal No. 10) by providing land use rights in ethnic minority and mountainous areas and avoidance of land transfer to outsiders; - Conservation of ethnic entity linked with customs and habits of ethnic minorities (Land Law, Art. 74.4.a); - Better social acceptance of land allocation when based on existing customary rights. Avoidance of conflicts within and among communities particularly when land assets or locations are coveted by non-indigenous people; - Reduction of vulnerability to poverty through diversification of income sources (VDG 8)7; - Enhancing equity and gender balance, promoting a fair distribution of land; and - Positively influencing household migration strategies, i.e. reducing migration of poor to urban centres. S c o p e o f C u s t o m a r y T i t l i n g i n V i e t n a m 10. The General Department for Land Administration (GDLA) reported 90% of agricultural land and 50% of forest land as having been allocated with certificate issuance as of 20028. That limits the scope for customary titling primarily to forest land, of which an estimated 2 million ha are presently under the management responsibility either of commune administrations or districts' Forest Protection Units and are thus the main focus of customary titling. In the medium term, at least a further 0.5 ­ 1.0 million ha might emerge from reform of state forest enterprises (SFE) or forest companies and might be of particular relevance in some areas, e.g. Central Highlands. In the long-term, more land might emerge out of continued SFE reform or out of the re-organisation of Protection Forest Management Boards. A dynamic scenario of potentially allocating 3 million ha of forest land (to communities and households) is not unlikely, given the slow progress of the restructuring of the State sector in forestry and the concern among the GoV staff that the allocation will affects the achievement of the development goal of a 43% permanent forest cover9. To make the issue more complex, the Land Law does not mention community as a forest land user whilst an amendment of the Law is not expected in a near future. A solution has been already proposed in the revised Forest Law, which is being reviewed by the National Assembly and is expected to be approved by it in Dec 2004. The revised Forest Law is expected to recognize the community's use of forest and this to be recorded in the titles. This fits into the Land Law's broad definition of agricultural land that is defined as a broad category including land for annual and perennial plantation, grass land, forest, water surface for aquaculture and land for salt production. Although further expansion of the scope of community's land use appears to be in line with the GoV policy to encourage community participation in socioeconomic development, it is difficult to make a projection at this moment as it is subject to experience and lessons learnt under short-term efforts. Thus, given the complexity of this issue, in the medium run, it is likely that the proposed customary land titling would be applied first for the land they already manage de-facto, including 7 Vulnerability to poverty being defined as the risk of being exposed to insecurity of current and future deprivation. For many rural poor access to forest resources is an important element of their risk mitigation strategy (PTF, 2002). 8 Figures might be much lower, as in some cases they include short-term contracts and not only long- term LUCs. Other numbers provided by GDLA and the Forestry Sector quote land allocation as high as 85 % of forest land, as they include forest land that has been contracted (Forest Protection Contracts), see also Chien, 2004. In this context, Quan (2003) states that 2.5 million ha forest land are 'managed' by communities. 9 Given the variability and ambiguity of data this area may be much larger. 4 forest and "unused" land. Of the total area of about 2.2 million ha of this category of land, 1.1 million ha have already allocated to communities by provincial authorities. 11. However, the expected total area of customary land titling may be less than the amounts mentioned above, given the existing system of land classification. The land categories currently under consideration for customary titling cover agricultural land and so-called unused land (®Êt ch-a sö dông). Within the category of agricultural land, allocation concerns not only plantation land but likely also forest land, in particular scattered production forest land and protection forest land for which Protection Forest Management Boards or financially viable forestry enterprises cannot be established (usually below a size of 5,000 ha for the Boards)10. Unused land includes mainly land used for shifting cultivation in various fallow stages. Forest land without forest cover, often already used for upland agriculture ("dat nuong ray") or for grazing but usually referred to as "bare land" ("dat trong") has been the primary focus in the first round of land allocation for afforestation, or as agricultural land. As under this land use, households have incentives to have the land allocated to them, this first round land titling has resulted in allocation of "bare land" to individual households (about 2.1 million ha to 450,000 households in total according to GDLA). The 2.5 ­ 3 million ha forest land in question for the subsequent round of allocation (customary titling) is mainly covered by poor natural forest in various stages of degradation, averaging standing volumes of 30 ­ 80 m3/ha. However, in few cases, particularly in the Central Highlands, it also includes a few areas with standing volumes above 100 m3/ha and thus still valuable forest resources in terms of timber and non-timber forest products. In any case, it is obvious that the customary land use is closely linked with the capacity of community to manage the forest resources sustainably and equitably. 10 Customary titling would in the short to medium term not include Special Use Forest areas (2 million ha, likely to be extended to 3 million ha10) and large contiguous Protection Forest areas (> 5,000 ha) for which Protection Forest Management Boards have already been formed and titles issued. Although these forest areas are partly claimed by customary groups, an allocation is presently unlikely given the cautious approach the GoV is adopting in forest land allocation. 5 R E S U L T S O F F I E L D S T UD Y A N D L I T E R A T U R E R E V I E W 11 N a t u r e a n d D y n a m i c s o f C u s t o m a r y T e nu r e S y s t e m s i n V i e t n a m 12. Customary laws and tenure systems have evolved over centuries in Vietnam. They were influenced in the past by varying degrees through the feudalist regimes of the Nguyen Dynasty (1802 ­ 1883), during the French colonial time (1858 ­ 1954), and starting from 1930 by the policies of the Communist Party of Vietnam. Prior to 1960, external influences caused only slight alterations in customary laws and tenure systems as they were not subjected to increased population pressure and major migration schemes. Only after 1960 in the North and after 1975 in the South, when the State intensified its centralisation and collectivisation efforts, a superimposing influence on customary laws and traditional resource use systems became apparent. The Government assigned large areas of land for forestry purposes and placed it under the management of newly established State Forest Enterprises in midland and upland regions of Northern and Southern Vietnam in the early 1960s and late 1970s, respectively. State forest management was part of a larger attempt of transforming the use of rural resources and traditional social structures in the mountainous areas. This effort further included the formation of agricultural producer cooperatives and massive programs of resettlement and sedentarisation. The transformative approach to managing rural resources through direct state management brought state policies and regulations in direct conflict with customary laws and traditional land management of local ethnic groups in the mountainous areas. Moreover, it caused a drastic decline in Vietnam's forest resources (Sikor and Apel, 1998). 13. In response to these problems, the 1993 Land Law and other related regulations concerning land allocation initiated a shift from direct state involvement and centralisation towards decentralisation and devolution of forest management recognising the rights of individual households as land users. However, communities were not yet acknowledged as a legal entity and thus not eligible to receive titles. In many communities the altering impact of state policies remained rather small. Use of natural resources was still governed by customary laws and social structures still largely intact, and customary institutions shaped formal land allocation after 1993. Village rules, not the formal titles, often regulate land tenure and household land holdings within the administrative boundaries of villages (Sikor and Truong, 1998). In some other communes, where social structures had weakened and land claims overlapped due to in-migration or the founding of state cooperatives, formal land allocation failed completely. Attempted allocation of land was mainly an approval of land occupancy at the time of collapse of cooperatives. This was in many cases reported to be leading to inequalities considered socially unjust, and with a majority of farmers stating that a redistribution of land would be necessary before formal titles can be issued (Vuong Xuan Tinh and Hjelmdahl, 1996). 14. The characteristic features of customary tenure systems for forest land in Northern Vietnam and the Central Highlands before 1960 (and partly continuing up to present), can be summarised as follows: (i) The state (or landlord) is the owner of the land, the community administers and individual community members use the forest land. The boundaries between different communities are clearly defined and disseminated from generation to generation. 11 The analysis in this section is mainly based on the reports of Vuong Xuan Tinh (2004) and Thu Nhung Mlo (2004) which focus on the Central Highlands and the Northern Mountains, respectively, and entail a thorough literature reviews. 6 (ii) The village headman (e.g. khoa buon or khoa pin ea for E de, Khroanh bon by for Mnong people) represents the village community and has the full right to make decisions regarding the management and utilisation of forest land. This includes the decision to entrust individuals and/or groups with certain parts of the land, e.g. rice paddies, upland agricultural fields, etc. Besides the village headman, land guardians (e.g. Po Lan for E de and Tem the tem brii for Mnong) supervise religious matters related to land (see also Luu Hung and Vorpahl, 1997). (iii) The village headman and the land guardian act on grounds of customary law (e.g. Klei due or Klei bhian for E de, Phat Ktuoil for Mnong, To loi phian for Gia Rai people). Customary law contains long-standing principles which are mutually accepted by community members. It is often adjusted to suit specific village situations and might be flexibly applied. Community members observe the law on a voluntary basis. Punishments are applied to violations aiming at education of violators and involve equity concerns (e.g. fines often entail the offering of an animal to the community). (iv) Individuals are responsible to enforce the principles and rules within the community land boundaries. They are entitled to use, inherit, and offer land as a (sometimes temporary) present, but are usually not allowed to sell or mortgage forest land. (v) All community members have equal access to forest resources. The right 'first come ­ first served' in claiming land and forest products and the right 'who works will benefit' in utilising common resources is usually respected by the community (Littooy et al., 1995). Precious and/or scarce forest products (e.g. game) are usually shared within the community. (vi) The exclusion of outsiders is a right that is usually restricted, in particular for forest resources. Outsiders, who ask for forest or land resources are usually granted access to the resource. For shifting cultivators (e.g. H'mong) this sometimes leads to claims on upland resources beyond the boundaries of villages (Littooy et al., 1995). The incomplete exclusion of outsiders has to be seen in context with actual and/or perceived abundance of forest resources and how the community values these renewable resources. (vii) The community has the full right of alienation of land, which means that it may temporarily or permanently abstain from using all rights to the land, for example the community may exchange, lease or sell land to other communities or individuals (outsiders). The execution of this right depends on (traditional) land categories: sacred forests, cemetery forests, and watershed protection forests are usually inalienable. Individuals require consent by the community if they want to alienate land entrusted to them for management. 15. There are striking similarities in the general characteristics of the analysed customary tenure systems in the Northern Mountains and the Central Highlands, although they include several different ethnic minority groups, such as H'mong, Thai, Dao, Khmu, Muong, E de, Mnong, Gia Rai, etc. It can be argued that an in-depth analysis of customary tenure systems would yield differences between ethnic groups and social and environmental contexts. The study team, however, concluded that the general principles and basic rights relevant for customary titling show common features, and thus no further specification is required. 16. In general, customary tenure systems and the associated managerial, organisational, and regulatory arrangements have undergone dynamic changes in the past and will continue to do so in future. Customary groups have adapted their tenure and resource management arrangements in order to respond to changing environments. These adaptations have only partly been successful. Customary tenure tends to be slow in adapting to change and easily loses its regulatory force and provokes exploitative uses if confronted with new forms of resource appropriation. Nationalisation of forest resources, for example, led to poorly regulated situations resulting in 'use it or lose it' unsustainable 7 forms of utilisation and to weakening the right of exclusion of outsiders. Often problems stem from lack of formal legal acceptance of customary rules and the imposition of outsiders' 'advanced' management regulations on 'backward' customary rules. These partly ineffective adaptations have led to the notion that these systems were outdated. However, customary resource use systems are not necessarily destined to experience the 'tragedy of the commons', but can be transformed into formally endorsed and supported statutory rights (see Box 1 below). Box 1: Preventing the 'Tragedy of the Commons' Opinions on customary tenure systems have been influenced by negative experience of common property in a stage of social disintegration. It seemed that an increase in the productivity of land could better be obtained by private entrepreneurship leading to the conclusion that collective utilisation arrangements were outdated. In a broader meaning, the problems related to collectively used resources in a situation of social and economic changes have been described as the 'tragedy of the commons' (Hardin, 1968). In recent years, a more differentiated view on collective tenure systems and resource management has emerged. The phrase that "everybody's forest is nobody's forest" which has been quoted in this context is neither right nor wrong. In cases of traditional systems in the stage of social disintegration it is right. It is certainly wrong if traditional customary rights have been transformed into formally endorsed and supported statutory rights of legal entities (Schmidthüsen, 1997). C o n c e p t o f S t a t u t o r y R i g h t s i n V i e t n a m 17. Statutory land use rights in Vietnam are granted with a Land Use Certificate (LUC). Apart from pilots in Dak Lak and Son La Provinces, these Certificates have as yet only been issued to state organizations and non-state entities such as individual households, private persons, and organizations. The entitled user has the legal right to use and enjoy the advantages or profits of the state's property for a certain period of time (20 years for agricultural and 50 years for forest land). The LUC comprises the rights to exchange, transfer, lease, mortgage, and pass on land for inheritance12. It also establishes the full right to exclude other users that are not included in the Certificate. The user has the obligations to use the land for a specified purpose, to follow general management prescriptions which are defined in related decisions and regulations (e.g. Forest Protection Law), and to pay taxes as regulated. 18. Apart from pilots implemented within the framework of co-operation projects, statutory rights over forest land for non-state entities have in practice so far only been issued for forest land without forest cover for the purpose of forest establishment. Regarding the products of the land, there are different benefit-sharing regulations, depending mainly on who has invested into the establishment of the resource base. The legal framework now also allows for the allocation of existing forest to non- state entities. In this case, the state reserves the right of ownership to the land and the resource base. The user only enjoys the annual increment (calculated with 2%) of the resource base (see Decision 178/2001/QD-TTg). As mentioned above, land and natural forest is a common asset and thus the state can only allocate the resource base for usufruct rights. When the usufruct right expires, the resource base must, theoretically, have at least the same value (stock) as when initially allocated. 12 Very different from these long-term use rights are short-term contractual rights ("Forest Protection Contracts") which are granted on an annual basis for up to 6 years and only entail very limited use rights. Customary titling as referred to in this study does not cover the contractual sub-letting of land areas allocated to state organizations (e.g. Protection Forest Management Boards, Special Use Forest Management Boards, State Forest Enterprises, etc.) to village communities and groups of households for forest protection. 8 C u s t o m a r y R i g h t s v s . S t a t u t o r y R i g h t s : A C o m p a r i s o n 19. In Table 1, a community's customary rights and statutory rights to forest land are compared using an adapted analytical framework of Schlager and Ostrom (1992)13. For the customary rights we assume the status which largely was in place before 1960, and continues to be in place in many communities with only slight changes. Since statutory rights of communities have not been established, we assume the most likely outcome of the debate over the implementation guidelines for the revised Land Law, as understood by the Study Team from consultations with representatives of MONRE and a review of the draft version of the implementation guidelines as of 13/04/2004. The table also indicates gaps and conflict potential between customary and statutory rights which are relevant for an implementation strategy for customary titling. Table 1: Comparison of customary and statutory rights in Vietnam. Customary right of Statutory right of land Gaps / Conflict potential community (de facto user (community)** owner)* Right of Full right Full right No gap, no conflict potential access / To be debated: the inclusion control of the of an explicit gender note (as land for LUC for individual households) Right of Full right to withdraw Restricted right: withdrawal Gap exists and needs to be Withdrawal of products based on regulated by forestry addressed through real products / internal regulations. administration and external incentives and allocation of Benefit Benefit sharing regulations. logging quota. High conflict sharing between community Benefit sharing between potential. members regulated community and the state through internal regulated with Dec. 178 regulations. (many exemptions, e.g. ODA projects) Right of Full right vested in the Restricted right: e.g. cannot Gap exists and needs to be management hand of the community, change land use from forest addressed through clear and transferable to to agricultural land practical management members for certain provisions. categories of land. Right of Restricted right to Full right (obligation) Gap exists. Low conflict exclusion of exclude outsiders from potential because outsiders withdrawal, e.g. communities are likely to outsiders asking for welcome support by the state permission are usually to exclude outsiders. granted access. High conflict potential if that support is not granted. Right of Full right to Status of debate: Gap exists and needs to be alienation temporarily or No right to exchange, addressed. Presently low permanently refrain transfer, lease forest land conflict potential but from using all rights to allocated by the state. But probably increasing in future the land. Usually not right to exchange, transfer, and danger of illegal markets exercised for certain lease land accumulated by if regulations are too land categories (e.g. the community in market restrictive. sacred forest, cemetery transactions. forest). Eligibility for No right Status of debate: No gap exists. But medium support from (But within framework Unlikely to accept title as conflict potential in case of outside of 661-programme, collateral. communities who have 13 Detailed field level surveys using an adaptation of this analytical framework were conducted in Dak Lak (Sikor et al, 2003) and are currently piloted in Son La (Thanh, 2004, forthcoming) 9 communities are often Unlikely to be eligible for received protection fees and contracted for Forest financial support (e.g. forest are not supported anymore Protection of de jure protection fees). after titling. state land de facto owned by communities). * as defined in customary law and related traditional rules, ** according to Land law: 13/2003/QH11 dated 26/11/2003, effective from 7/2004, draft version of the implementation guidelines as of 13/04/2004, and interpretation of current legal decisions on land use change in pilot allocations to communities P i l o t I m p l e m e n t a t i o n o f I s s u i n g L a n d U s e C e r t i f i c a t e s t o C o m m u n i t i e s i n V i e t n a m 20. In 1999, Dak Lak Province initiated a pilot forest devolution programme to allocate natural forest under the management of state forest enterprises to local people. The main goal was to maintain and improve forest resources and improve living standards of forest recipients through benefits derived from the allocated forest. Between 1999 and 2002, a total area of about 16,000 ha was allocated with LUCs to ethnic minority people in 18 villages. Roughly one third of the total area was allocated to individual households, groups of households, and village communities, respectively (Tranh Ngoc Thanh et al., 2003). Figure 1: Land Use Certificate for 155.8 ha of different types of forest of the village community of Na Phieng, Yen Chau District, Son La Province. The LUC is kept by the village head and will be handed over to his future successor. 21. In 2001, Son La Province started a comprehensive forest land allocation programme aiming at clarifying management responsibilities for the entire forest land of the Province. Between 2001 and 2003 roughly 685,000 ha of forest land has been allocated with LUCs to local people, including 426,000 ha covered with natural forest. About 54% of the total area has been allocated to village 10 communities, 8% to groups of households, 18% to organisations (including mass organisations at village level, e.g. Youth Union, Women Union, etc.), and 20% to individual households (Son La PPC, 2004). In both cases, the LUCs include the rights as provided in the 1993 Land Law (to exchange, transfer, lease, mortgage, and inherit). In Dak Lak, the additional right was granted to use 20% of the allocated forest for agro-forestry purposes. Both pilots are endorsed by provincial decisions and backed by MARD.14 Benefit sharing is also regulated by provincial decisions which were pilots of national level Decision 178 and now partly deviate from it (see Pham Xuan Phuong, 2003). 22. Both pilots were originally not intended for testing customary titling but for the implementation of community based forest management. In both pilots, communities/groups of households/individual households were issued with the standard Land Use Certificate s including the complete set of rights pertaining to these certificates (to exchange, transfer, lease, mortgage, and pass on land for inheritance). Although the discussion of the outcomes of this titling is inevitably linked with the results of community based forest management, these pilots have created valuable lessons learned for customary titling (see Tranh Ngoc Thanh et al., 2003; Pham Xuan Phuong, 2003): · Actual field-level participation of local communities and its facilitation are crucial in the process of forest land allocation and have an impact on the execution of rights. Participation and unhurried planning and discussion processes at community level ensure that the gap between customary and statutory rights is addressed. Communities usually express the need for a differentiated allocation of titles for specific areas to either the village community, groups of households, individual households, and social organisations within the same village. For example, plots envisaged for afforestation which are close to residential areas are often allocated to individual households, forest far from the residential area often to groups of households, whereas watershed forest, sacred forest, cemetery forest for which the community has a common interest are allocated to the village community. · The tenure rights granted must represent a real incentive for the recipients. This also requires a firm commitment by the state to provide support to enforce endowed rights, in particular to exclude outsiders. Often, these rights are not respected by outsiders and entitled users as well as non-recipients enjoy the benefits. · Entitled users do not see LUCs for forest land necessarily culminating into forest management. They may re-categorise land use where agricultural production is an attractive alternative to (pure) forest land use. According to preliminary results in Dak Lak, after 3 years of forest allocation, in some cases a reduction of forest in quantity (area) and quality (volume) could be observed. · Benefit sharing mechanisms between the entitled users and the state must be clear, transparent, and practical. They must contain some degree of flexibility and thus be negotiable to reflect expectations of both sides. · The high rate of allocation of forest land to village communities (54% in Son La) demonstrates the interest of communities in practicing customary land use. In Dak lak allocation to communities - without further follow up support - tended to be successful in areas with considerable availability of resources and no overlapping claims. · Land allocation to communities is less costly than allocation to individuals. When it reflects local customary use, the intended objective of minimization of land conflicts targets was achieved. 14 Close exchange with national level policy makers was facilitated through frequent exchanges and study visits facilitated by two GTZ projects operating in the respective provinces: The Social Forestry Development Project (SFDP ­ Song Da) operated in Son La from 1995, and the Sustainable Management of Resources in the Lower Mekong Basin Project (SMRP) in Daklak. From 1999, the National Working Group for Community Forestry Management was formally established within MARD. 11 · Despite of various anecdotal evidences of positive impacts of CLT, there are no comprehensive and reliable evaluation of the two pilots and their impacts on the communes' living standards, natural resources endowment and social dynamics has been done, whilst its necessity has been widely recognized by GoV authorities at different levels. In fact, the lack of awareness about the lessons learnt represents a constraint to the GoV in taking decision about the expansion of CLT. D i s c u s s i o n 23. Based on the comparison of customary and statutory rights, the definition of gaps, and the experience with pilots in Dak Lak and Son La Provinces, four main conclusions can be drawn: (i) At the outset of the study the working hypothesis was formed that issuing land use certificates (LUC) to communities (referred to as customary titling) requires a certain social context (e.g. social cohesiveness, mutual membership, trusted leadership, strong traditions in community management, equitable benefit sharing and decision making, etc.) which is likely to vary in some areas with respective implications for the suitability of customary titling. This hypothesis holds true only if the LUCs for communities would be in full accordance with customary law and traditional practices. However, customary titling based on statutory rights as envisaged by the GoV, largely differ from customary rights. This also means that the above mentioned social contexts are no conclusive indicators for fulfilment of statutory regulations. This applies to both unaffected 'traditional' customary rights and superimposed customary rights which have been altered and undermined by various external factors, as long as expectations for customary and statutory rights differ. It is therefore essential to narrow the gap between customary and statutory rights and address the conflict potential. Once the rights are re-defined and accepted by the community, social contexts will regain importance as they determine the social costs of the agreement (expected occurrence of disputes and costs of problem resolution) and the costs of improving land management after allocation (need for training and extension support). (ii) If the issuance of LUCs to communities is envisaged by the GoV as statutory rights which harness the positive features of customary law and practices but at the same time facilitate adaptations in view of the GoV objectives of forest land allocation, the required GoV support needs to be defined. The main question in this respect is how the Government could support customary groups in a careful/socially peaceful alteration of traditional tenure systems in view of the objectives of forest land allocation. The implementation of the revised Land Law with regard to customary titling needs to define statutory rights for communities in a way that they acknowledge and protect customary use rights and facilitate their application in a sustainable manner in designated natural forest areas. (iii) Traditional customary rights relate to a situation of abundant forest land resources providing more forest products than subsistence use required and being the main source of land for agricultural cultivation. However, in some cases these rights have been adapted to the new situation of scarce and contested resources. Absence of conflict of a 'de facto community management' is a good indicator for successful adaptation. Assessment of absence of conflict requires close dialogue with the concerned community. Level of sustainability, or 'soundness', of management practices is another good indicator. This is, however, difficult to measure and can only be assessed.15 Where this adaptation has not yet taken place it may be supported from outside. In that case, communities have to be 15In absence of easily verifiable absolute indicators, and high costs attached to monitoring complex indicators (e.g. Forest Stewardship Council criteria), monitoring of relative indicators needs to suffice (e.g. better adhesion to management plans than before). 12 picked up where they are (i.e. review the old/current regulations). Likewise, customary land titles may also be supported for non-homogenous groups, if so wished by the group. (iv) Prior informed consent:participation of communities and the skills of facilitators to enable participation are crucial for any approach towards customary titling.16 Customary tenure systems incorporate community, group and individual use rights for different categories of forest land (see e.g. Apel and Pham Van Viet, 1997). The important role of village heads can be harnessed for customary titling (e.g. pilot in Son La: village head keeps the LUC and is responsible to hand over to his successor). 24. Based on international experience in dealing with customary rights, conclusions relevant for Vietnam are the following: (v) In a number of countries customary rights were established within a separate system from that administering statutory rights, and subsequently required to be reintegrated into the later one (see Box 2). It is therefore argued here, to refrain from setting up a separate system and integrating customary and statutory rights early on. Box 2: The need for re-integrating customary property titles Land mobilisation: the transition of customary land to property In Papua New Guinea customary land is held by land groups according to local custom. Traditionally customary owners never considered their land as property but as a domain for survival of land group members, past, present, and future. All kinds of social, spiritual, ecological, epistemological and subsistence values inhered in such land. However, from the business point of view in the modern sector, it is an asset with no value. It is not a "property". It is outside the modern sector and isolated from mainstream development. In order for the majority of the population to be involved in the mainstream economy the people must make a transition from being masters of a domain to being communal property owners. Customary land management is the "social contract" for customary land and this social contract between the members and the land group sets the terms and conditions for land use within the land group. By the Land Group Incorporation Act the government of PNG has provided the first legal artifact to empower the land group to enter the modern sector. The customary "social contract" remains intact after registration. Ownership remains intact. What has changed? Issue of title to a so-called Incorporated Land Group (ILG) has empowered the group to convert its previously locked up and commercially valueless asset (land) to a valuable property able to be shaped and employed to the group's advantage. Source: Power, A.P. 2001. Note: While this excerpt is taken from a statement of an advocacy group, similar conclusions are drawn within the project context of WB project reviews (Davis, 2003) and DFID (Quan and Gazdar. 2004.) For the positive impact of tradable land titles in Vietnam see also Do Quy- Toan and Lakshmi Iyer, 2003. (vi) In areas where national management of resources is not ensuring sustainable resource management, land allocation to communities is an option to achieve an improvement of resource management. However, it has to be followed by a clear negotiation of secured rights and obligations, and capacity building (see Box 3 below). Lynch and Talbott (1995) 16This approach of Prior Informed Consent with local people and ethnic minorities is a crucial element of WB Policy for Indigenous People and was also concluded to be part of the Convention on Biological Diversity Conference of Parties in Kuala Lumpur in February 2004. Vietnam is a signatory to the Convention and was represented at this meeting by staff from MONRE. 13 have reviewed relations between community based tenure rights and effective resource management across Asia and the Pacific 10 years ago. They concluded then that state- sanctioned incentives for local sustainable management were inadequate, lacking a legitimate, mutually enforceable, and secure balance between governments and local communities. Thus defined resource management objectives (mostly to arrest ­ and ultimately reverse current deforestation trends) were not being fulfilled. Internationally discussed solutions developed in Asia since, have often not fully covered all issues, or lack comprehensive documentation. Box 3: Customary titling as the precondition for improved community based forest management Lynch and Talbott (1995) emphasise three principles emerging from case studies in Asia and the Pacific regarding the importance of customary titling for improved forest management: · the prevailing paradigm of nation-state ownership and management of forest resources in South and Southeast Asia is not sustaining declining stocks of forest; · an alternative policy and legal framework that recognises and secures local populations' private, community-based tenurial rights provides the best prospects for improving forest management; and · local authority and management structures need further development and refinement if the respective rights and correlative duties of nation-states and local communities are to be securely balanced. (vii) Implications of allocation of forest land to communities ­ and costing of follow-up support - have to be carefully considered. If land is allocated with the option for re-categorization, local users likely prioritize economic objectives over environmentally favourable options for significant areas which could lead to significant reduction in forest cover. If this development is extended to areas with important environmental function, future investments for reinstatement of forests need to be anticipated, and weighed against the benefits of short-term socio-economic gains. The experience in China can be used to analyze impacts, and associated long-term costs and benefits (see Box 4). Box 4: Results of Forest Land Allocation in China Between 1982 and 1984, in China long term forest land use rights were allocated at an extensive scale to local communities following very liberal regulations. The allocated forest land categories were collective forest, private forest and shifting cultivation fields. With the economic boom in the late 90's a trend of leasing out collective forest land to private persons, enterprises, and to local villagers for economic purposes emerged with positive impacts on the local economy. In parts of Southwest China, however, this was the major reason for accelerated deforestation and fragmentation of natural forest which has been converted into cash crop plantations (rubber, fruit tree, coffee, sugarcane, etc.). The ecological disadvantages were further aggravated as considerable in-migration of people working on the leaseholds has led to increasing pressure on the natural forest. After 20 years of allocation, the shifting cultivation lands are almost completely used for permanent agriculture or cash crop production. The Government of China has recently launched a massive Sloping Land Conversion Programme (SLCP) including significant investments aiming at environmental rehabilitation. These examples attest to the importance of follow-up support systems including monitoring and evaluation, enforcement of management provisions, and incentives for sustainable management after land allocation. 14 (viii) The implementation of customary titling is a very comprehensive undertaking which involves many elements and a considerable time frame. Box 5 provides an example from a land administration project in Ghana describing the process steps that were built into the implementation plans. Box 5: World Bank funded Land Administration Project in Ghana The government of Ghana issued its Land Policy in June 1999. The long-term goal of the Government's land policy is to stimulate economic development, reduce poverty and promote social stability by improving security of land tenure, simplifying the process for accessing land and making it fair, transparent and efficient, developing the land market and fostering prudent land management. This will be achieved through implementation of a long term (15-25 years) land administration reform program. The Ghana Land Administration Project (LAP) will be the first phase that would lay the foundation for implementation of this long-term land administration reform. The specific objective of the project is to develop a sustainable and well functioning land administration system that is fair, efficient, cost effective, decentralized and that enhances land tenure security. It would seek to (a) harmonize land policies and the legislative framework with customary law for sustainable land administration; (b) undertake institutional reform and capacity building for comprehensive improvement in the land administration system; (c) establish an efficient, fair and transparent system of land titling, registration, land use planning and valuation; and (d) issue and register land titles in selected urban and rural areas as a pilot to test (b) and (c) above and innovative methodologies, including community level land dispute resolution mechanisms. Source: WB. 2003. Ghana Land Administration Project. WB Report 25913 15 P R O P O S E D D E C I S I O N P R O C E S S 25. As statutory rights will differ from customary rights, social contexts will not suffice as sole indicators for areas, regions, or ethnic groups where the titling to communities would be most likely met with success. Although social contexts will certainly be relevant in the medium to long term with regard to the required management support of the allocated land, we assume that for the appropriate implementation of the titling itself, the social context is of only secondary importance compared to the performance and facilitation of participation at community level. As participation emerged in the analysis as the crucial factor for success of customary titling, the starting point must be the opinion of the village/hamlet community. 26. Three cases (A, B, and C) can be distinguished in this process and need to be defined according to detailed criteria (see figure 2): A. Communities who want to receive community/group titles for certain forest areas within the village boundaries: a. Based on social, economic and environmental criteria the GoV agrees; b. Based on social, economic and environmental criteria the GoV agreement is withheld or pending (requiring further clarification). Criteria for case A: i. General criteria: For groups, up to 50 ha17; for villages/hamlets, no area ceiling within the boundaries of the village/hamlet18. Boundaries between must be clearly demarcated in maps and accepted (no land disputes). ii. Categories eligible for titling: production forest and scattered protection forest land (< 5,000 ha)19 including bare land, natural regeneration areas, plantations and natural forest. For all areas categorized as permanent forest: No immanent threat of conversion of existing natural protection forest into commercial plantations (absence of viable alternative investment options on protection forest land). iii. Absence of conflicts of the current de facto customary tenure system and forest land management within the community and between the community and the responsible administration. In case of titling to groups as a subset of the village community, the group must have consent of the village community. iv. General agreement on current principles and regulations applied by the community based on fairness, equity concerns, and gender concerns. v. Current management practices on the forest land for which the community applies are rated acceptable or are expected to be acceptable if collective statutory rights are granted and enforced. vi. Dynamics: Medium-term stability of all factors above rated sufficient. 17 Son La Province has set a ceiling of 30 ha. 18 Son La Province has set a ceiling of 500 ha. However, the question remains, who is responsible for the remaining forest within the village/hamlet boundaries if the area is larger than 500 ha? 19 Refers to Article 43 (Organisation of Protection Forest Management) of Draft Forest Law (revised): Protection Forest below an area of 5,000 ha can be allocated to village/hamlet communities. 16 Non-fulfilment of criteria leads to: (1) issuance of titles to individual households, private persons, organisations (see under B) if most criteria for customary titling are not fulfilled (2) GoV providing clarification, renegotiation of assistance and conditions if most criteria for customary titling are actually fulfilled B. Communities who do not want to register community/group titles for certain forest areas within the village boundaries, but titles for individual households: a. The GoV agrees to individual titling b. The GoV disagrees to issuing individual titles Government provides clarification, renegotiation of assistance and conditions C. Communities who do not want to have titles either for community/groups or individual households/organisations for forest areas within the village boundaries: GoV provides clarification, renegotiation of assistance and conditions. In the meantime responsibility continues to reside with the commune. 27. The scope of the respective cases and the required level of government support are difficult to estimate. However, the Study Team estimates, that out of the total scope of 3 Million ha, about 1.8 Million ha (60%) will qualify for customary titling, of which 1.2 Million ha could be done in a first step with medium level support and 0.6 Million ha after clarification and renegotiation of assistance has been provided, which would need a higher level of support20 (for the estimated percentages see also figure 2). About 1.2 Million ha are estimated to be allocated to individual households, in two steps as well (0.75 Million / 0.45 Million ha). 20 The estimation takes into account that support needs are higher, if clarification and renegotiation of assistance has to be provided. 17 Figure 2: Decision flowchart Case A: Communities Case B: Communities Case C: who want to receive who do not want to Communities who community/group titles register community / do not want to for certain forest areas group titles, but titles have titles for within the village for individual forest land at all boundaries (50%) households (30%) (20%) Criteria Agree- Disagree ment ment · General criteria (if most (if most · Eligible categories criteria criteria for for customary · Absence of conflicts custom titling are of current de facto ary fulfilled) management titling · Agreement on are not (5%) current principles fulfilled) and regulations (25%) · Acceptable management practices · Medium term stability of factors above Fulfilment Nonfulfil- of criteria ment (40%) (10%) Customary titling Titling to individual Allocation pending (40%+20%=60%) households and 10%+5%+20% = organisations 35% (25%+15%=40%) 20 % 15 % GoV provides clarification, renegotiation of assistance and conditions (35%). 18 I M P L I C A T I O NS O F A P P L Y I N G T H I S D E C I S I O N F L O W C H A R T R e q u i r e d s t e p s f o r p r o v i d i n g c u s t o m a r y t i t l e s 28.The existence of sound forest and forest land classification and long-term land use plans developed with active participation of local people, the community and approved by the relevant GoV agencies is the prerequisite for ensuring appropriate balance among interests of households, the community, and broader society. Negotiation of assistance and conditions for titling and the appraisal of criteria to be fulfilled should be done at the lowest administrative Government level, by the commune administration, as currently regulated (Decision 245/1998/QD-TTg21). 29. A review of the current status of intervention options should be structured along the elements listed in table 2. Column 3 lists the prerequisites for facilitating customary titling. Table 2: Aspects of GoV service delivery for customary titling: status and options Elements Current GoV intervention options in Proposed review of intervention land allocation options for customary land allocation Priority Defined according to land category With agricultural land allocation nearly and region (e.g. along roads, for completed, focus should shift to specific land (sub-) categories, e.g. customary ethnic minority land; currently for agricultural land) communities who want to receive collective titles, especially those who do not require follow-up investment Speed Defined according to political targets Defined according to regional without comprehensive reflection of requirements comprehensively reflected capacities (trained staff, funds). in capacities (trained staff, funds). Current time frame envisaged in the Given the estimated scope of 2.5-3 CPRGS for completing land allocation Million ha forest land to be allocated, and issuance of land use right and current staff resources (Cadastre certificates for all land users is 200522 and Forest Protection staff), a realistic deadline would be 2015 Intensity of Limited capacities of staff with regard Increased intensity through right-sizing support to facilitation skills, and modern land and devolution of service delivery, management technology, operating including review of option for functions funds often limited to allocation of to be taken over by the Forest Protection agricultural land). Department within and after allocation Quality of Quality of staff (quality of training, Increased quality through staff training support budget allocation to staff training) not in facilitation of participation and addressing facilitation of communal conflict resolution. In addition, issues, participation and conflict expansion of general cadastral tasks23 to 21 "On the Implementation of State Management Responsibility on Forest and Forestry Land at all Levels", dated 21/12/1998. 22 CPRGS, Part III, I.1. however, does not specifically mention forest land. 23 Consisting of (a) cadastral activity (recording the physical attributes of property through base maps, boundary demarcation, GIS, etc.); (b) registry activity (recording the legal attributes of property 19 Elements Current GoV intervention options in Proposed review of intervention land allocation options for customary land allocation resolution forest land needs to be reviewed Starting Government targets, administrative Community applications through the point decisions commune to the district peoples' committee Respon- Cadastral Department, with assistance Cadastral Department, assisted by the sibility of Forest Protection Department, Forest Protection Department unclear task division Funds Varying levels of intensity (variations Cost norms according to facilitation in cost norms): current cost norms requirements (mixed calculations based according to land category (with cost on number of beneficiaries, average size norms for forest land less then 1/10th of of defined land plots per LUC, and total the cost for agricultural land), only land area allocated). In pilots the current slightly modified according to cost standard for forest land allocation "remoteness of area"24. Main factors: of 2,000 VND/ha has been increased to total fund allocation, fund channelling, accommodate facilitation requirements "the characteristics of funds being tied and approximates on average 50,000 to concrete service delivery", and VND/ha relative cost norm definition for allocation of various land categories are of significant practical implication for actual choice of all factors above I m p l e m e n t a t i o n I s s u e s a n d R e q u i r e d P o l i c y D e c i s i o n s 30. For successful implementation, a number of issues need to be considered: 1) Areas with high percentage of ethnic groups need preferential treatment: Ethnic minority groups will require more support. They will be disfavoured if cost standards do not adequately reflect higher service requirements (e.g. including translator, repetition of meetings). 2) Restricted staff capacities: Given the current capacity of at the local levels, particularly that of the cadastral services (Department of Land Administration), titling can hardly be effective and successful (Bui Quoc Toan, 2004) without considerable investments in human resource development and technical equipment of the implementing organisations. Also, closer cooperation between MARD and MONRE is required. 3) Benefit sharing mechanisms need to be reviewed as the most crucial issue restricting the GoV decision to allocate forest land25. The Study Team assesses Decision 178 and the related implementation guideline to be largely inappropriate as its regulations are too complicated, partly impractical and insufficiently flexible to allow for adaptations to specific local through legal review, archival and maintenance of information, etc.); and (c) regularization activity (adjudication and first title issuance, resolution of tenure and administrative conflicts, etc.). 24Remoteness being defined in 3 categories according to QD 41 UB-TT 8/1/1996. Slightly higher cost norms compensate for the extra effort of reaching remote communes. 25 The complexities related to defining the redistribution of a major public national asset (forests, timber) to a subgroup or individuals is most obvious in the 20 month delay experienced between issuing the respective decision (Decision 178/2001/QD-TTg) and the implementation guideline 80. Allocation on two distinctive terms is being discussed, one including the obligation for benefit sharing (resource tax, land tax, etc), one without these obligations, similar to the "Allodial land titles" discussed internationally (allodial, defined as a phrase in history/politics: land held by somebody without any feudal obligation of rent, service, or other duty to an overlord, Encarta Dictionary online) 20 situations. Tax provisions need to be simplified and brought in line with specifically defined objectives (e.g. poverty-reduction). It has to further be aligned with the policy on State Forest Enterprises (see also Artemiev, 2003, p.19) 4) Bias towards issuance of community/group titles: Most communities will apply for issuance of titles making use of all the offered options for titling of forest land to the community, groups, social organisations, and individual households. The titling to communities will have the advantage of faster implementation (e.g. rather simple and less time consuming mapping and area measurement) which might lead to a bias towards issuance of community/group titles. 5) Simplification of titling criteria fail to achieve community consent: Providing alternative options for community and private titling may furthermore lead to a simplification of titling criteria (due to the fact that the facilitating staff is not trained in participation and conflict negotiation). As observed in Son La Province for example, bare land was usually allocated to individual households, natural regeneration areas to groups of households, and existing forest to the village/hamlet community. This approach may override customary tenure systems and fail to achieve consensus derived from true participation and actual consent of villagers. 6) Reviewing representation of poor in Forest User Groups: Allocation of forest land below village level to groups and social organisations poses the question of the governance structure within the group, e.g. criteria for membership access and termination. It is considered the most problematic option with regard to equity and fairness concerns. Past implementation of forest land allocation has often involved the criteria of whether the participating households are able to actually manage and protect the allocated land. This should be avoided as it often leads to the exclusion of disadvantaged (poor, low labour capacity) households. 7) Institutional framework of "Forest User Group Statutes" needs to be reviewed (potentially under enterprise law, or cooperative law). It has to cover the following issues regarding organizational set-up: a. defining mandate and operational agreements vs. the administration (e.g. an approved forest management plan) b. regulating membership access and termination c. defining distribution mechanism of costs and benefits d. regulating treatment of non-compliance e. regulating modalities in case of mandate change f. defining modalities for conflict resolution 8) Review of regulatory framework for forest management: Management provisions that would allow for sustainable and profitable management of permanent forest land to be allocated are currently being developed in pilots only; technical and procedural/institutional issues require approval by competent organisations (which is usually the Forestry Department or the Forest Protection Department of MARD). 9) Discontinuation of subsidies needs to be reviewed in view of poverty reduction principles: Many communities are receiving forest protection fees between 10,000 ­ 50,000 VND/ha/year either from the 661 programme or the general operating budget of the Forest Protection Department. Some of these forest lands presently under so-called protection contracts are a focus of customary titling. The question arises whether the recipients of titles will still be eligible for further financial support. This touches on the issue of allocation providing real incremental benefits. In most cases the granted long-term use rights do not constitute an additional benefit, because in most cases the land (a) either has de facto been used by the community, or (b) does not offer substantial short-term benefits if current subsidies are discontinued with title issuance. 10) Forest inventory, monitoring and control mechanisms are presently insufficiently developed and require strengthening. 31. Required policy decisions with regard to the specific features of customary land rights include the following: a) Principle of subsidiary: The negotiation of assistance and conditions for titling as well as the appraisal of criteria to be fulfilled should be done at the lowest administrative Government 21 level, by the commune administration. According to Decision 245/1998/QD-TTg26 the chairman of the commune peoples committee is responsible for forest and forest land within the commune boundaries, including such aspects as forest land allocation. Furthermore, commune level has proven to be an important negotiator between national policies and regulations and traditional rules at local level (Sikor and Truong, 1998; Vuong Xuan Tinh and Hjelmdahl, 1996) and is familiar with the local situation, often being a part of local communities itself. Due to current capacity constraints, however, this task is currently often assured by the district administration. A specific approach to implementation of titling should involve the following steps: - Information provision on options for titling at village/hamlet level; - Application of village/hamlet community to the commune peoples committee according to standard format to be developed; - Appraisal of the application by the commune administration along the criteria resulting in recommendations for titling to the district PC; - Approval of the recommendations by the district peoples committee. - Implementation planning of the districts in co-operation with the province administration including the planning for priorities, speed, intensity of support, quality of support, targets, responsibilities, and funds. b) Restriction of alienation rights to communities: Regarding the rights included in customary titles the study team recommends to grant the right to inherit and to lease the land allocated by the state. Leaseholds have to be approved by the respective commune and districts peoples committee and have to be assessed towards their concordance with related policies. The rights to exchange, transfer, and mortgage should only be assigned to land which is acquired by the community/group in market transactions. c) Re-categorization of land use purpose by communities: In light of the new land classification under the new land law, some reclassification of forest land and unused land is envisaged, and respective responsibilities on various levels have to be specified. Some degree of flexibility for (temporary) re-classification of land use purposes should be warranted to communities (in Dak lak, 20 % of forest land was considered eligible for re-classification, e.g. agro-forestry purposes) for fulfilment of economic objectives. Within this context, the formal recognition of a sub-category of "shifting cultivation" ­ as a rotation of forest and agricultural land use is being discussed. However, for environmental objectives, permanent forest areas need to be clearly defined where re-categorization of land use purpose will be restricted. d) Territorial development approach: Flexibility in national laws and regulations is required to allow for certain regionalisation to accommodate specific situations at the provincial level. The proposed criteria in chapter 3 partly facilitate this regionalization and expected differentiation needs to be reflected in budgetary allocations. e) Regarding management provisions for permanent forest we recommend to outline a management planning system for collective forest land. In the absence of comprehensive, field-tested models for community-based forest management in Vietnam, a consistent operational framework covering the legal, organisational, and technical aspects of sustainable management and utilisation of forest and forest land under the responsibility of local communities is at present lacking. While policy developments at national level can further clarify administrative tasks of communes on forestlands, operational frameworks for community-based forest management adjusted to local conditions will have to be established by local governments. In May 2003, the National Working Group on Community Forestry27 has outlined a system for community-based forest management covering these aspects. f) Allocation of natural forest requires specific support structures: A new round of forest land allocation, in particular of customary titling will only achieve the anticipated 26"On the Implementation of State Management Responsibility on Forest and Forestry Land at all Levels", dated 21/12/1998. 27Procedure for the Establishment of Community forest Management Schemes. Proceedings of the NWGCF, National Workshop, 5/2003 (Discussion Paper by ADB Forestry Sector Project). 22 environmental objectives, if support systems including monitoring and enforcement mechanisms are in place in order to enable improved forest land management. This has to be developed in the context of a comprehensive community-based forest management system. 23 T O W A R D S I M P L E M E N T A T IO N O F C U S T O M A R Y T I T L I N G 32.Given various options for prioritization of implementation issues listed above, the study team recommends the following steps with regard to (a) analyzing the current situation, and (b) planning for potential investments. D e f i n i n g I n v e s t m e n t S c o p e a n d G e o g r a p h i c a l D e v e l o p m e n t P r i o r i t i e s 33.If prospects are limited for an economic leap forward resulting from allocation of customary tenure, the question needs to be answered if an increased investment in implementing such tenure instruments is still justified. Economic gains derived from social peace, livelihood security for the poorest, and long-term economic benefits for rural dwellers are poorly researched. A WB studies in Thailand on the public expenditure in land registration (Byamugisha, 1999) conclude that no studies on non-economic impacts exists. In the absence of conclusive impact studies, an assessment of social and environmental costs and expenses for mediating negative impacts of not proceeding with customary tenure need to suffice. The costs and expenditures for mediating negative impacts depend on a clear definition of objectives for the respective land areas, e.g. for areas with environmental significance currently an expenditure for direct subsidies for forest protection albeit a continued cost of a steady degradation of forest resources. 34.As argued in the first Chapter of this study, objectives of land use are not clearly defined, and they are not reflected in the current land classification system. An overall classification and its specification at local level would have to encompass all three elements of sustainable development, namely environmental, economic and social aspects. Which aspect is rated highest will depend on regional differences in the resource base under review for customary titling. Hypothetical, it could be argued, that Northern Vietnam can be described by a degraded resource base, environmental problems (watershed protection, soil erosion), and few social tensions (except for H'mong in some border areas). Therefore the hierarchy of objectives could be environmental, economic, social. In contrast, the central highlands still have a rich resource base, high social tensions, low environmental problems. The goal hierarchy could thus be: social, economic, environmental. This rating could have the following consequences: 1. If economic goals rate first, forest land should be allocated to communities with the right to (a) get economical benefit from permanent forests (including logging quota), and to (b) convert selected forest land for temporary agricultural/agroforestry use (as effected in the "20% regulation" in Dak Lak). This may result in the (temporary) reduction of forest areas of lesser importance which will soon be reversed with reduction of agricultural producer prices when WTO comes into effect: 2. If environmental goals rate highest, then forest land should be allocated to communities with the restriction to continue forest management, and be prepared to support them to do that. Conversion of forest land would not be allowed. Subsidization of use restrictions would be pursued to rehabilitate the resource base in the short to medium term, with such subsidies made available according to performance. This would involve a comprehensive monitoring system. 3. If global environmental interests in forests surpass national interests (e.g. with regard to maintaining primary forest), international fund transfers need to be negotiated (e.g. CDM mechanism). However, it must be recognized that forests have been higher on the agenda for the Vietnamese Government than justified by economic reasoning alone (historical reasons, important lobby, early insight in its livelihood importance and environmental value). While 24 livelihood concerns are clearly to be addressed by national policy, some of the environmental issues would surpass national interests and benefits. For the forest land considered for allocation to communities (production forest, scattered and partly degraded natural forest), global interest rates comparatively low. 4. If social goals rate first, a conducive environment for prioritizing ethnic groups needs to be established, based on Prior Informed Consent. It further requires provision of an appropriate support systems facilitating enforcement of endowed rights. This will entail considerable efforts in terms of capacity building, and funds. Contrary to the envisaged 'down-sizing' of administration it would certainly require a 'right-sizing' of government service organisations and further involvement of communal level capacities. In some areas in the Central Highlands this furthermore implies considering re-allocation of land, e.g. from SFEs to local communities, restriction of further in-migration, and provision of a functioning tutelage28 system. 35.Without a comprehensive evaluation of the socio-economic and environment impacts of the existing CLT pilots, the study team is reluctant to expect a leap in economic growth resulting from customary titling. However, substantial ecological and social benefits are attainable from clarification and legalization of land titles. This will be a major pillar of rural development (see also WB, 2002: Vietnam CAS, p. 37). If it is not addressed, the expansion of private titling will increase social pressures and ecological losses. The prioritised goals of customary titling should thus be (a) the facilitation of sustainable natural forest management, in particular in mountainous areas with predominantly ethnic minority groups. Based on a realistic assessment of the benefits of multifunctional natural forest management, appropriate funding and cost-sharing mechanisms need to be designed. A second goal is (b) the provision of legalized land titles for facilitation of increased land productivity for forest land not under natural forest (industrial perennials, forest plantations, non- permanent forest areas) for both communal or private use. N e x t S t e p s f o r I m p l e m e n t a t i o n : C o v e r i n g G a p s o f K n o w l e d g e 34. Prior steps that MONRE would need to take with regard to implementation planning for customary titling are: · Clarify land use objectives in view of economic, social (poverty, ethnic issues), and environmental objectives, and integrate into land classification principles. Decree the level on which they can be defined; · Review current pilot implementations, and provincial level guidelines in order to create the preconditions for customary titling through elaboration of suitable implementation guidelines. The study team recommends to build on ongoing provincial discussions and pilot implementations in Dak Lak, Son La, Dien Bien, and Cao Bang29; · Undertake an assessment based on the proposed decision tree to acquire a more accurate qualitative and quantitative understanding of the scope of the areas falling into categories A, B and C; 28Tutelage being defined as "the condition of being supervised or protected by a tutor or guardian" (Encarta Dictionary, online) thus relating both to educational (coaching) and legal security issues (ombudsman). The ombudsman function is provided in Vietnam through the People's Council and the Committee for Ethnic Minorities in Mountainous Areas (CEMMA), albeit not yet specifically focused on issues customary titling. 29 Other examples may exist but are less well documented, e.g. In 2000, PPC of Thua Thien Hue allocated 405 ha of natural forest to Thuy Yen Thuong Village for protection in 50 years. The commune is legally logging 91 m3 in 2004. Source: ,,Vietnam Express", May 2004. 25 · Review current province level adaptations/piloting of customary titling with regard to required training and capacity building of Government support staff, most likely starting in the provinces mentioned above; · Clarify required inputs of the cadastral services; depending on the typology/decision tree set out above and geographical distribution of the likely level of demand for collective titling; · Analyze scope and options to deal with overlapping claims through a compensation fund for payments to individuals and communities; · Review international options for project designs in land allocation issues. The most comprehensive summary of WB projects on land titling and land administration in general is provided for Latin America (e.g.: USAID Summit of the Americas.2001, see also last chapter); and · Establish MONRE/MARD working group to clarify responsibilities and role of the Forest Protection Department in implementation. 35. Given that most of the 3 Million ha under consideration for allocation - under customary titling for communities or to households ­ will likely remain to be classified in the sub-categories of forest land, a close cooperation with the forest sector is recommended. The envisaged working group between MONRE and MARD should preferably commence soon, as the new Forest Law is nearly completed and the implementation decrees will be of major importance with regard to issues of customary titling as far as the continued land classification as forest land is concerned. The working group could address the following issues: · Address the impact of the new land classification on potential reclassification of forestry land sub-categories, and of unused land, and define respective responsibilities on different levels of both organisations (following subsidiarity principles30). Review the option of temporary classifications, and classification for mixed sub-categories (agro/forestry, shifting cultivation), and allow for regional differentiation. · Substantiate the decision making process for legal guidelines by supporting pilots of provincial level guidelines for forest land allocation based on a procedurally focussed local adaptation of those guidelines developed and tested. Further use the analytical framework for impact monitoring in other provinces. Allocate financial resources for implementation and monitoring within 2004/2005; · Define institutional options for management of forest areas beyond village boarders (associations, forest user groups etc. under enterprise or cooperative law or under state administration31) to facilitate coherence of Forest Management Planning within a "landscape approach"; · Address community organisations development with regard to land and forest management in light of subsidiarity criteria; including village/commune resource fund management as specified in recent legal documents on financial administration in commune and village level; · Review institutional options for tutelage ­ both coaching and ombudsman function - with regard to customary titling to ethnic minority groups and follow up in land and forest management. A tutelage system could be an alternative to legal restrictions on land use and could serve to minimize long-term legal restrictions on land markets; and · In view of a simplification of the current benefit sharing regulations, analyze options to link overlapping claims compensation with investments into community economic development, and through compensation payments to individuals. One option is to recognize any improvements and other investments outsiders have made to properties occupied inside 30Subsidiarity principle is defined as "the principle that political power should be exercised by the smallest possible unit of government", 31 While comprehensive descriptions are available for European countries (see e.g. Schuler, 2004), institutional options in the Asian context seem not accessibly documented 26 indigenous claimed areas, and to estimate the value of these improvements in monetary terms. Payment of these improvements in indigenous titling processes is an option under the law in several countries. WB experience suggests that this kind of process moves relatively rapidly with relatively few complaints and court cases, and most outsiders are satisfied to move elsewhere with the compensation provided. The investment is high, however, and this would have to be balanced against the costs of these conflicts going unresolved for a prolonged period. A trust fund for indigenous land purchase is one option discussed internationally (see e.g. WB, 2003: Ghana Land Administration Project). 36. With regard to follow up of land allocation and management of permanent forest, the outcomes of discussion within the forestry sector are important, particularly as they are defined in the current revision of the Forest Law and its implementation guidelines: · Regarding the management provisions for permanent forest, review the comprehensive community-based forest management system currently documented in the National Working Group for Community Forestry within FSSP and its implications for cadastral service requirements. · Review future options of customary titling for Special Use Forests (currently under Decision 08 there is a provision for Special Use Forest of <1000 ha to be contracted to communes for management). R e v i e w o f P o t e n t i a l P r o j e c t C o m p o n e n t s s u p p o r t i n g C u s t o m a r y T i t l i n g 37.As part of the preparation for further investments into customary titling a review of current experiences is recommended. Within the WB the requests for financing land administration are increasing. Within the Bank's lending portfolio the number of projects increased from 3 stand-alone land project 10 years ago, to 25 ($ 1 billion commitment) in the 2000-2004 period. (Land Administration Group, 2004). Projects have mainly focused in Latin America and in Africa. The Bank experience has been reviewed in a recent workshop on land issues, e.g. by Deininger and Feder (2004) for options in customary systems. Experience shows the need for good project preparation (including piloting) and clear policies. A comprehensive overview of WB projects on land titling and land administration in general is provided on the web up to 2001 (USAID Summit of the Americas. 2001). 38.The issue of customary titling is often part of a larger land administration project. An internal Bank paper concludes that: "For Bank purposes, one can think of land administration as a set of services that make the land tenure system within a country relevant (socially recognized) and operational (able to be recorded and transferred). This is a broad definition. Along these lines, land administration activities include: ? cadastral activity (recording the physical attributes of property through base maps, boundary demarcation, GIS, etc.); ? registry activity (recording the legal attributes of property through legal review, archival and maintenance of information, etc.); and ? regularization activity (adjudication and first title issuance, resolution of tenure and administrative conflicts, etc.)." S u m m a r y o f r e c o m m e n d a t i o n s a n d f o l l o w u p 39.Based on the feedback and discussion32 of a draft version of this report, the team assesses that there is currently no viable alternative to customary land titling (CLT) for those communities de facto 32 See also discussion note from a workshop on May 12, attended by representatives from MONRE (Dept. for land administration and land registration, and the Research Institute for land 27 managing their forest. The team therefore recommends that GoV would initially focus on formal titling of land currently managed by communities (estimated at approx. 2.3 million ha including 1.4 million ha allocated by Provincial Peoples' Committees and 0.9 million ha contracted). Later on, a wider consensus on CLT is still to be reached based on a comprehensive assessment of the current practice and pilots and their wider dissemination beyond the areas currently managed by communities. 40.As a prerequisite for successful customary land titling (CLT), the following issues need to be addressed in the short term: 1. Define clearly the land categories eligible for CLT: The absence of an appropriate legal framework has been raised as the major constraint for successful CLT and for drafting the guidelines for the CLT implementation. Within the new Land Law, while community has been identified as holder of agricultural land, neither community nor village have been identified as users of forest land in the later chapters of the new Land Law. This would limit CLT to two sub-categories of agriculture land only: upland and paddy ­ both not usually preferred for communal allocation. All agree that forest land must be the main focus, so this issue must be reflected in implementation decrees and in the Forest law. 2. Review options for re-categorization of land sub-categories by the community itself in an active participatory process: So far, according to the Land Law, land use shall follow the land use plan/zoning and the potential for local negotiation based on customary law is not mentioned at all ­ particularly with regard to re-categorization between sub-categories. Land classification and zoning should be done with the community's active participation. 3. Define community in the first step as "village". Some argue that the concept of "community" as a legal identity is still to be defined and reflected in legal docs, e.g. Forest Law and Civil Law under revision, and Land Law guidelines. Others argue that also "household" is not clearly defined. The study team follows what they assess to be the mainstream thinking, i.e. to allocate both forest land and related forest resources to village level in the name of the village head who is a semi-official GoV representative at the level and allow customary law to regulate intra-community relationship unless it conflicts with statutory law. While this definition of "community equal village" would solve the problem of dealing with exclusion of sub-groups within the village, it needs to be recognized that within a village still there may be several persons under consideration for holding the LUC. Where several kinship group heads or religious practitioners may take important roles in some ethnic minority groups, the person who holds the land use title for the community should be chosen by the community. 4. Clarify communities' use rights of forest land and forest, models for community land and forest management, role of the State and policy/institutional setting in support of CLT at all local levels. 41.Within the framework of the on-going discussion process between MONRE and the WB the following follow-up is agreed: First, in a medium term, it is proposed to carry out more in-depth studies on CLT which would allow to (i) consolidate existing experiences and lessons; (ii) assess the effectiveness and efficiency of CLT compared with other forms of forest land management; and (iii) define what forest land and forest to be allocated to communities and how. More agencies, e.g. MARD, Ministry of Justice (MOJ), Office of the Government (OOG), and Ministry of Interior (MOInt) should participate. Second, in a short term, it was proposed to assist GoV/MONRE/MARD in drafting guidelines for granting formal use rights of the land and forest some communities already manage themselves. 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MARCH 4TH & 5TH ESSD WEEK LAND SESSIONS. http://lnweb18.worldbank.org/ESSD/ardext.nsf/24ByDocName/LandMeetings 33 G L O S S A R Y AEF Allocation of Existing Forest; pilot allocation scheme concentrated in Son La province CBFM Community based forest management CEM Committee for Ethnic Minorities CLT Customary land titling FD Forest Department within MARD (from 7/2003, previously Forest Development Department) FPU Forest Protection Units FSSP Forest sector support program and partnership; a Government-donor initiative to establish a joint strategy for a sector wide approach GDLA General Department for Land Administration ­ now part of MONRE GFA GFA terra systems, Consulting Company implementing SFDP GoV Government of SR Vietnam GTZ German Technical Cooperation Agency LUC Land Use Certificates, either as permanent title (Red Book Certificate, RBC) or as temporary contracting for forest land (Green Book Certificate) LUP-LA Land Use Planning and Land Allocation MARD Ministry of Agriculture and Rural Development MDG Millennium Development Goal MoInt Ministry of Interior MoJ Ministry of Justice MONRE Ministry of natural resources and environment, including land administration NWGCF National Working Group on Community Forestry Management (chaired by FD) OOG Office of the Government PC People's Committee PTF Poverty Task Force, operationalin Vietnam from 2000 SFDP Social Forestry Development Project ­ Song Da, GTZ Project SFE State Forest Enterprise SMRP Sustainable Management of Resources in the Lower Mekong Basin, GTZ project SR Socialist Republic SWA Sector Wide Approach; focus on a sector strategy instead of isolated activities TA Technical Assistance USD United States Dollar VDG Vietnam Development Goal VND Vietnamese Dong WB World Bank 34