Safeguarding customary forest tenure in the Mekong Region: a legal analysis

ABSTRACT

Customary forest tenure is under increasing pressure from various actors for economic, political, and environmental purposes. The erosion of customary forest tenure can impair societal nature relations, erode traditional practices, and contribute to environmental degradation. In the Mekong Region, customary forest tenure largely remains unprotected through national laws. This article presents a legal analysis examining the extent to which the legal frameworks of Cambodia, Lao PDR, Myanmar, and Vietnam contain legal provisions for safeguarding customary forest tenure within different resource systems, agricultural land, swidden land and forests, drawing on Schlager and Ostrom’s bundle of property rights. The legal analysis shows significant gaps exist in legal frameworks to safeguard customary tenure. We recommend that policies toward statutory recognition be developed from the ground up and consider the harmonisation between land and forest laws and relevant implementing ministries.

KEYWORDS:

• Customary forest tenure
• Mekong Region
• land rights
• forest resource rights and access

Introduction

Since the latter part of the 20^th Century, customary forest tenure (CFT) has come under increasing pressure from the large-scale enclosure of land by various actors for economic, political, and environmental purposes (Baird, 2011; Dwyer et al., 2016b; Dwyer, 2015; Hall, 2011; Kenney‐lazar, 2015; Peluso & Lund, 2011; Ra & Ju, 2021). In areas traditionally owned, managed, used or occupied by Indigenous Peoples, deforestation and degradation rates are reduced compared to non-protected areas across the tropics (Sze et al., 2021). Changes to CFT resulting from law enforcement, dispossession or livelihood changes can increase deforestation as land regimes change and forests are converted to cash crops (Lewis, 2021). Further, erosion of CFT can reduce access to land and resources, increase competition within and between local communities, impair social safety nets, and erode traditional practices (Andersen, 2015; Ironside, 2017a; Mann & Luangkhot, 2006).

To define CFT, we begin by drawing from Alden Wily’s (2017, pp. 461–462) robust definition of customary tenure.

through a modern lens, customary or indigenous land systems are no more and no less than community-based regimes for the ordering and sustaining of access and use of lands and resources, and thence delivering rights and for which the community itself is the surety. These systems cannot exist without social community, or without correspondent geographical space over which the community’s norms apply … land use dictates the norms and changing land use and its distribution alter those norms. Hence what constitutes the right to land of a community in general or of a member of the community is myriad in form to fit the land use and may change over time.

To expand this definition, we further recognize customary tenure systems comprise of communities, drawn together through extended relations to their family, clan, village or shared ethnicity, with longstanding customs and traditions often corresponding to a specific geographical territory, and resources within such territory, that govern socio-cultural norms and land and resource practices (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015).

Customary forest tenure can be understood as community-based regimes where forest lands or resources (forests as defined customarily, i.e. through customary understandings, ecologically, i.e. through parameters grounded in scientific practices, or politically, through legal frameworks) constitute a component of the community-based land and resources regime or traditional and spiritual community norms and beliefs (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). The degree that forest land and resources are managed collectively and individually may alter with changing land use regimes, as may traditional and spiritual community norms and beliefs (Ironside, 2017b). The definition of CFT is expanded upon in the next section.

In the Mekong Region, the State retains control over the vast majority of forestland despite a high percentage of the population living in or near forests, administered by the State (State forests), with customary claims to land and resources (Newton et al., 2020). The proportion of the population living within 5 km of State forests is 29% in Cambodia, 64% in Laos, 26% in Myanmar and 24% in Vietnam (Newton et al., 2020). CLMV’s legal frameworks typically permit State forests to be managed for public or government use. Legal frameworks may also permit the allocation of State forests to private or public sector organizations and Indigenous Peoples and Local Communities (IPLCs) to utilize and manage. An estimated 2.1% of State forests are allocated to IPLCs in Cambodia, 0.13% in Laos, 0.13% in Myanmar and 2.27% in Vietnam (RRI, 2013).

State control over forested areas stems from forest governance patterns established under colonial administrations (Bryant, 1997) and extended through territorialization and state-making processes (Vandergeest & Peluso, 1995) and post-colonial organizations such as the Food and Agricultural Organization (FAO) (Vandergeest & Peluso, 2006b). In Southeast Asian countries, state forests are defined ecologically, juridically, and territorially via laws, State-led mapping, and demarcation practices and often overlap with IPLCs’ customary territory (Vandergeest & Peluso, 2015). Early forest legal frameworks conceived forests as land-use zones to be protected and utilized for state economic purposes, primarily timber extraction (Bryant, 1997; Vandergeest & Peluso, 2006a). Local people’s inclusion within legal frameworks was endorsed in a primarily utilitarian sense, such as through restoration programmes, and customary access and use only marginally accommodated (Peluso & Vandergeest, 2001; Vandergeest & Peluso, 2006a). During the 1950s and 1960s, working with national forestry administrations, FAO brought further attention to swidden cultivation conducted by IPLCs as an impediment to economic forestry, with a view to its eradication (Vandergeest & Peluso, 2006b). Protected area establishment has also been implicated as a coercive tool of state power through the territorialization of state peripheries enclosing Indigenous territories (Baird, 2009; Dwyer et al., 2016a; Woods, 2019). Further, recent restoration and avoided deforestation programmes that, as a function, tend to marginalize multi-functional land use, especially swidden cultivation, represent continued territorial attempts by CLMV governments to increase control over land, resources and people (Pichler et al., 2021, p. 10). Correspondingly, private property formalization processes have been implicated in land grabbing as legally ‘legitimized’ private owners and companies superseded peoples without formalized property rights leading to dispossession and appropriation of customarily held land (Baird, 2011; Dwyer, 2015).

However, global trends signal a shift towards legal recognition of customary land ownership and increased forest access. Alden Wily (2018) identifies that globally there has been ‘a rise in number of laws catering specifically to the identification, registration and governance of community property’ and ‘laws that acknowledge that community property may exist whether or not it has been registered’ (p 68). Further, formal IPLCs’ legal rights to access and use forestland increased globally by 40% from 2002 to 2017 (RRI, 2022). Community forestry initiatives and Indigenous land titling schemes initiated in Southeast Asia over the past decades are seen as good entry points for safeguarding CFT, although much still needs to be achieved (Baird, 2013).

The formal recognition of CFT within national legal frameworks remains an integral pathway to safeguarding CFT in the face of increasing land and resource pressures. This article examines how land and resource rights (access, use/withdrawal, exclusion, transfer, and ownership (Schlager & Ostrom, 1992) and customary norms are accounted for in Cambodian, Lao PDR, Myanmar, and Vietnam’s (henceforth CLMV) legal frameworks. We assess the strengths, weaknesses, and gaps of customary rights and governance within CLMV legal frameworks toward the recognition and safeguarding of CFT.

Customary forest tenure in CLMV

As presented, a high percentage of the population in CLMV live within 5 km of State forests and depend on forest resources. Alongside forest dependence, forests in CLMV are home to a high level of cultural diversity. There are 24 officially recognized Indigenous Peoples living within Cambodia’s borders (IWGIA, 2020a), 160 officially recognized ethnic subgroups within Laos (IWGIA, 2020b), 135 ethnic nationalities living within Myanmar (Minority Rights Group International, 2017) and 54 officially recognized ethnic groups within Vietnam (Minority Rights Group International, 2018). Each ethnic group and sub-groups engaged in CFT are diverse in their customary practices, religious beliefs, political structures, and natural resource management, which have evolved through varying historical contexts. There is an ongoing debate regarding using the terms Indigenous Peoples or Ethnic Minorities within our target countries (see Baird, 2016). In this article, we use the term widely employed by the specific country’s legal framework and IPLCs when discussing Indigenous Peoples, Ethnic Minorities and Local Communities in the general sense.

Customary tenure systems comprise of communities, drawn together through extended relations to their family, clan, village or shared ethnicity, with longstanding customs and traditions that often correspond to a specific geographical territory, and resources within such territory, that govern socio-cultural norms and land and resource practices (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). Land use often dictates customary norms, and customary resource systems are present in myriad forms and change over time (Alden Wily, 2017).

External boundaries of customary territory are typically marked by natural elements such as water sources, forest cover and hills or even physical markers such as roads, buildings or irrigation systems and are known by the entire community (Mann & Luangkhot, 2006). Boundaries can be flexible and may be associated with non-sedentary practices that do not necessarily fit statutory boundaries (Mann & Luangkhot, 2006). Boundaries can also change due to political or economic factors. In Laos and Vietnam, government resettlement programmes have altered community territory and customary practices as State-imposed tenure superseded customary arrangements (Bayrak et al., 2013; Ironside, 2017a, 2017b). In Myanmar, the ongoing civil war and the impacts of the 1^st of February 2021 military coup have internally displaced many communities, and their customary lands remain occupied by varying actors (Naushawng Development Institute, Nyein Foundation, & Oxfam, 2018).

Spiritual and cultural links between the community, land and resources are common in CFT arrangements (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). In CLMV, spiritual ceremonies and beliefs that spirits inhabit forests and trees are integral to land and resource management (Andersen, 2016; Chamberlain, 2007; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). Spiritual practices are dynamic and can change due to market pressures. In the past, Ede communities of Vietnam’s Central Highlands would hold community gatherings to worship the new rice spirit and ask for a good harvest; however, the introduction of coffee and other crops altered their traditional practices (Ironside, 2017b).

Within community-based regimes, forested areas are typically managed collectively (Thu Hang et al., 2015), although, in Myanmar’s Northern Chin State, some communities have private firewood forests belonging to a family (Andersen, 2016). Individual permanent or temporary rights may also be held over non-timber forest products (NTFPs), a piece of land, or resin trees, which can be transferred and inherited by community members but not given or sold to outsiders (Andersen, 2015).

Swidden cultivation is an important practice of many CFT arrangements within CLMV. Amongst communities, there are variations in swidden practices (pioneering or rotational), length of fallow period, crops grown, and amount of cleared land under individual management (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). For some communities, all swidden cleared land is managed collectively (Ironside, 2017b; Mann & Luangkhot, 2006). For others, there are variations between collective and individual land use. For Cambodian Khmer communities, typically, ‘each household has land use rights to cultivate and harvest crops’ on land cleared through swidden practices ‘for subsistence and sale’ (Ou, 2019, p. 11). To many Ethnic and Indigenous Peoples who practice swidden cultivation, forests and agricultural land are considered one and the same; therefore, swidden cultivation can not practically or culturally be separated from forests (Swift & Cock, 2015).

Customary management systems can also include; permanent agriculture; grazing land; cemeteries; timber harvesting for houses, fences, or fuel; resin tapping, collection of non-timber forest products and water sources; spirit forests/zones/trees; and cultural and religious practices. (Andersen, 2015; Mann & Luangkhot, 2006; SPERI & CODE, 2011; Swift & Cock, 2015). Management is primarily determined locally, differs significantly amongst communities, and may have developed alongside State interventions so can demonstrate legal plurality (Bounmixay, 2015). In Myanmar’s Chin and Shan States, some families have long-term claims to parcels of land inside the customary territory, such as paddy fields (Andersen, 2015). In Vietnam, some Thai and Hmong communities have private land areas they can sell; priority is given to members of the same community (SPERI & CODE, 2011). However, for such customary communities, land control rights are still collectively managed by the entire community or community leaders.

Methodological notes

The legal frameworks of CLMV determine that, for the most part, ‘Land’ and ‘Forests’ are governed under separate laws and state agencies; therefore, we organize our legal analysis and results section into the following sub-sections.

1. Customary tenure provisions through Land Laws: primarily determined through Land Laws and Civil Codes and related Sub-Decrees

2. Customary tenure provisions through Forest Laws: primarily determined through Forest Laws (production forest, protection, and conservation forests), including community forests (CFs); through Forest and Protected Area Laws, Community Forestry Laws and related Sub-Decrees

3. Customary tenure legal recognition for swidden cultivation; addressed through Land and Forest Laws.

In addition to the above laws, we also examined State Constitutions, Labour Laws and Codes, Laws on Environmental Impact Assessments, Ethnic Rights Protection Law (Myanmar) and relevant policies such as Myanmar’s National Land Use Policy (2016), Lao PDR’s Technical Guideline on Village Forest Management Planning and Implementation and Cambodia’s National Forest Programme (2010–2029). Most of the laws can be found in English, and authors from each CLMV country analysed laws in their native language to ensure accuracy in interpretation and translation.

As a note, we acknowledge that the separation of land and forests can be conceptualised as a statutory conception that does not necessarily correspond to customary land tenure regimes. However, due to the embedded separation of ‘Land’ and ‘Forests’ in CLMV legal frameworks, we determined that a legal analysis through the above structure provides the optimal analysis and presentation of the results. We reflect on this aspect of the analysis again in the discussion section.

For each sub-section, we analysed the legal frameworks of CLMV based on the CFT definition, which outlined that CFT is a community-based regime primarily tied to longstanding customary norms, practices and territory – which may alter over time through changing land use and resource regimes or displacement – within which land and resources governance presents in myriad forms – including collective and individual land and resource access. Taking this definition into account, we examined the extent to which CLMV’s legal frameworks support CFT through the below aspects:

(i) Legal recognition of community claims to customary territory (Table 1) and;

• (a) Legal processes in place to enable a community to formalize claims over customary territory,

• (b) Community rights to determine external territorial boundaries customarily.

• (c) The legal category of land and types of property permitted under community-based regimes (i.e. residential property, agricultural land, forests, and cultural lands).

• (ii) Bundle of land and resource rights (ownership access, use/withdrawal, management, exclusion, alienation) (Schlager & Ostrom, 1992) (Tables 1 and 2); inclusive of rights to conduct swidden cultivation, timber resource rights, non-timber forest product resource rights and other rights to conduct traditional land and resource practices (Table 2). To note, in terms of CFT, exclusion rights can be understood as the rights of a community to define their customary boundaries and can access land and resources within their traditional territory upon negotiations with neighbouring communities, so customary territory is legally safeguarded against appropriation and afforded the same rights of protection as private property (Alden Wily, 2017).

• (iii) Users defined under these rights, whether limited (i.e. Ethnic communities or Indigenous Peoples) or unrestricted (i.e. local people).

Table 1. Customary land tenure provisions through Land Laws and Civil Codes in CLMV.

Country and Laws	Customary territory recognised and resource user	Administrative process in place to formalise claims	Length of continual and peaceful occupation required for formalisation	Type of land and property	Land rights	Other remarks
Cambodia Land Law (2001) & Sub-Decree (No. 83)	For registered Indigenous Communities only Borders defined customarily in agreement with neighbours and state agencies	Yes, Indigenous Community Land Titles (CLT).	Not specified	Residential land, traditional agriculture, swidden landscapes, spiritual forest land not exceeding 7 ha, and burial ground forest land not exceeding 7 ha	Ownership rights not permitted to sell land	Indigenous communities must be recognised and formally registered with two Ministries before applying for a CLT.
Laos Land Law (2019)	For households and individuals, not communities Borders defined customarily in agreement with neighbours and state agencies	Yes	20 years	Residential and agricultural land	Right to manage, inherit and transfer use rights through sale, exchange, assignment, or donation.
Laos Land Law (2019)	Collective use/management specified only	Yes	Not specified	Cemeteries, spirit forests, common ponds, temples, schools, health centres, village administrative office and village markets	Management and use rights only – not permitted to transfer, sell, lease, or mortgage
Myanmar’s Law Amending the Vacant, Fallow, and Virgin Lands (VFV) Management Law (2018)	For ethnic all nationalities in Myanmar Protection from offences and penalties under said laws only	No	Not specified	Customary lands under the traditional culture of the local ethnic people, including hillside farming, lands currently used for religious, social, education, health, and transportation purposes of the public and ethnic people.	Protection from offences and penalties under said laws only
Vietnam Land Law (2013)	Communities in the same village, street quarter or similar residential area sharing the same customs and practices or the same family line	Yes	Not specified	Houses and other land attached assets such as communal buildings, agricultural land, and aquaculture areas	Ownership and management rights but cannot exchange, transfer, lease, donate land use rights or mortgage land or land use rights
Vietnam Civil Code (2015)	Communities Customary ownership of land according to customary boundaries	No	30 years	Multiple ownership by communities of property means land, houses, and structures and property attached to land	Can manage, use, and sell per customary practice and State laws.	According to the MoNRE, the Civil Code is not aligned with the land law leaving the issue of CF unresolved (Ironside, 2017b)

Table 2. CF land and resource rights in CLMV.

Country & laws	Forest category	Tenure length and land rights	Agriculture use rights	Shifting cultivation rights	Timber resource rights	Non-timber Forest Products resource rights	Other traditional resource rights
Cambodia Sub-Decree on Community Forestry Management (2003, Law on Forestry (2002) & Protected Area Law (2008)	Community Forests Permitted in Production Forests	15 years (renewable) Management and exclusion rights Cannot sell, lease, pawn, donate, mortgage land	Not specified	Permitted Required to be built into Community Forest Management Plans, only take place in designated areas during specified periods (Law on Forestry, 2002, Art.37)	Harvest, process, transport, and sale Permitted at subsistence levels without a permit (Law on Forestry, 2002, Art.40; Sub-Decree on Community Forestry Management, 2003, Art.12).	Household use and for sale Permitted at subsistence levels without a permit. Selling or bartering is not permitted within the first 5 years of approval of the CF Management Plan (Law on Forestry, 2002, Art.40; Sub-Decree On Community Forestry Management (2003, Art.12)	Protection of sprit forests, resin trees and other traditional areas can be built into a management plan (Law on Forestry, 2002, Art 29 & 40)
	Cambodia Community Protected Areas Permitted in Sustainable Use Zone/Community Zone of Protected Areas	As above	Permitted Paddy field and field garden (Protected Area Law, 2008, Art.11)	Permitted Required to be built into Management Plans, only take place in designated areas (Protected Area Law, 2008, Art.11).	Not permitted	Household use and for sale Small-scale collection of NTFPs in Conservation Zone to support livelihoods is permitted under strict control (Protected Area Law, 2008, Art.11).	As above
Lao PDR Forestry Law (2019)	Village Use Forest Forest land in village administration is divided into Protection Forests that include water resources and riverside forests, roadside forests, Conservation forests include sacred forests, cemetery forests, and village use forests. and Production Forests (Article 114)	No timeframe provided Management rights. Exclusion rights ambiguous Cannot sell, lease, pawn, donate, mortgage land- households can transfer and inherent forest plantations	Agricultural land inside the village jurisdiction is the responsibility of other sectors according to their respective mandates	Restricted Restriction of uncontrolled shifting cultivation is to be conducted by promoting and disseminating relevant policies and laws to the people to stop practising shifting cultivation and change to sedentary livelihood (Art.53 & 118)	Communal use Using timber for village benefits such as building village offices, meeting halls, schools, dispensaries, temples, and bridges. Authorization needed Provincial Agriculture and Forestry Office (Art.62) Household use Utilization for constructing and repairing houses. Authorization needed District Agriculture and Forestry Office (Art.53) Commercial use A sustainable forest management plan is needed -have usufruct rights to timber communities or households have planted in Production forests and can gain income from carbon credits (Art.65)	Household use Non-commercial utilization of NTFPs for medicinal use, decorative activities, exhibition and others are allowed (Art 62) Utilization of NTFPs as a food source that grows seasonally and for daily uses can be Harvested (Art.63) Customary use of timber and NTFPs for traditional festivals and religious ceremonies (Art.64). Commercial use Villagers can sell for commercial purposes NTFPs in Production Zones (Art.65)	Burial and sacred forests and environmental protection (Forestry Law, 2019, Art.62 & 63),
Myanmar CF Instructions (CFI) (2019) and Forest Law (2018)	Community Forest Agreement The buffer zone of Protected Areas*, Reserved Forest, natural forests, and mangrove lands traditionally and customarily managed by the local community, Ya land (dry fields), upland farming land area; land at the disposal of the government (which usually refers to Vacant Fallow and Virgin land).	30 years (renewable) Management and exclusion rights Cannot sell, rent, mortgage, hand over or donate to the Community Forest (CFI, 2019, Art.39).	Agroforestry permitted Right to apply to develop an agroforestry system suitable for local conditions in implementing community forestry (CFI, 2019, Art.23).	Not permitted within CF land	Household use Can harvest and utilize wood from the natural forest for subsistence purposes (CFI, 2019, Art.23) Commercial use Can establish commercial forest plantations (CFI, 2019, Art.23).	Household use Harvesting forest produce in Production forests is permitted for personal use “Forest produce includes wild animals, insects, their parts, and their by-products, and “trees, leaves, flowers, fruits, rhizomes (rootstalks), orchids and other parasitic plants and their by-products” (Forest Law, 2018, Article 2). Right to preserve traditional medicine and to develop it (Ethnic Rights Protection Law 2015, Article 4). Commercial use Can harvest and utilize other forest products for subsistence and commercial purposes within CF (CFI, 2019, Art.23) (other forest products are not clearly defined in the CFIs).	CF can be formed in natural forests and mangrove forests conserved in accordance with their traditions (CFI, 2019, Art.23).
Myanmar Conservation of Biodiversity and Protected Areas Law (2018)	Community Conserved Protected Area. (Indigenous Community Conserved Area) No sub-decree or regulations developed	“allow community participatory protected area management, which favours harmonization of sustainable socio‐economic development of local communities and sustainability of biodiversity conservation” (Art 13)
Vietnam Law on Forestry Law (2017) & Decree No. 156 (2018)	Belief forests within State Protected Forests	50 years Management rights, exclusion rights not specified Cannot transfer, lease or donate the forest use right; mortgage or share invested capital equal to the value of the forest use right.” (Law on Forestry Law, 2017 Art.86).	Not Permitted	Not Permitted A provision aims to supply rice to ethnic communities to alter “nomadic farming practices and replant replacement forests” (Decree No. 156, 2018, Art.88).	Household use Timber can only be sourced from dead or broken trees for personal/communal purposes, and state authorities must approve timber use (Law on Forestry Law, 2017, Art.52).	Household use Fungi and non-timber forest products can be collected in line with further regulations (Law on Forestry 2017, Law, Art.52).	Allocated to preserve customs and traditions
	CF allocated forests within Natural Protection Forests	As above	Agroforestry permitted Permitted to intercrop agricultural crops, non-timber forest products, livestock, and aquaculture under the canopy of protective forests, if forest area is not reduced, and activities do not impact forest quality or regeneration processes- “not be carried out in watershed protection forests with a slope of over 30 degrees.” Communities own all agroforestry assets created on land they invested in. (Decree No. 156, 2018, Art.25).	Not Permitted As above	Household use and sale permitted Timber can only be sourced from dead, broken or diseased trees (Law on Forestry Law, Art.55; Decree No. 156, 2018, Art.21).	Household use and sale permitted Extract NTFPs not to impact forest protection (Law on Forestry Law, 2017, Art.55; Decree No. 156, 2018, Art.21).	Can be allocated to preserve customs and traditions
	Community allocated forest within Planted Protection Forests	As above	Agroforestry permitted Combined agricultural and fishery production can take place on non-forested land. However, communities must ensure that 80% of land is forested for watershed protection forests. It cannot take place in watershed protection forests with a slope of over 30 degrees. Livestock grazing is not permitted on newly planted land. Communities own all agroforestry assets created on land they invested in (Decree No. 156, 2018, Art.25).	Not Permitted As above	Household use and sale permitted Timber can be used from pruning activities and when the forest has reached maturity from selective harvesting or clearcutting certain areas in line with management plans (Law on Forestry Law, 2017 Art.55; Decree No. 156, 2018, Art.21).	Household use and sale permitted The use of forest products is possible in line with laws and management plans (Law on Forestry Law, 2017 Art.55). Forest products include “plants, animals and other forest organisms consisting of timbers, non-timber forest products, rattan and bamboo products after being processed”(Law on Forestry Law, 2017, Art.2).	As above
	Community allocated forests within Planted and Natural Production forests	As above	Agroforestry permitted For forested areas: forest “owners may grow agricultural crops and non-timber forest plants, keep animals and rear aquatic animals under the forest canopy without reducing forest areas and quality and affecting the forest regeneration.” For unforested areas: combined agroforestry- fishery production activities are permitted. Forest cover must be maintained at ”60%, for mangrove forests where aquaculture is carried out; or at least 70%, for other forests.” Communities’ trees, livestock and other assets are created on planted land they invested in. (Decree No. 156, 2018, Art.29).	Not Permitted As above	Household use and sale permitted In natural forests, timber harvesting and forest products need a management plan approved by the Districts People’s Committees to ensure that products are used sustainably. In planted protection forests, the forest owners decide on the management of timber and other forest products (Law on Forestry Law, 2017 Art.58 & 59; Decree No. 156, 2018, Art.29).	As above	As above

Results: legal analysis of customary forest tenure in CLMV

Customary tenure provisions through Land Laws

The constitutions of Cambodia (Article [Art.] 58) and Myanmar (Art.37) establish the State as the owner of all land. Similarly, Lao PDR (Art.17) and Vietnam’s (Art.53) constitutions recognise that land and natural forests belong to the People and are managed by the State. The constitutions of all four countries do not explicitly recognise customary tenure, although they do not prohibit it, and Laos’ (Art.16) and Cambodia’s (Art.44) constitutions recognise collective property rights. Such constitutional clauses do not necessarily create a barrier to legal recognition of CFT as further laws and regulations can permit the transfer of ownership from the State to households, individuals, communities, the private sector, etc.

The Cambodian Land Law (2001) recognises that Indigenous Communities existing on land ‘at present shall continue to manage their community and immovable property according to their traditional customs’ (2001, Art.23).

The lands of indigenous communities are those lands where the said communities have established their residences and where they carry out traditional agriculture. The lands of indigenous communities include not only lands actually cultivated but also includes reserved necessary for the shifting of cultivation which is required by the agricultural methods they currently practice, and which are recognised by the administrative authorities

(Land Law, 2001, Art.25).

The Land Law (2001, Art.26) recognises Indigenous Peoples’ tenure as legitimate prior to formal land titling. Such land has the same rights to protection as private property, without the right to sell (Land Law, 2001, Art.26). A 2009 Sub-Decree (No. 83) outlines the procedures for formally recognising Indigenous Community Land Titles (CLT). CLT is a title that grants Indigenous Communities ownership rights of State Land, which through CLT is transferred to the collective domain. To apply for a CLT, communities are required to apply for official recognition as an Indigenous Community first from the Ministry of Rural Development (MRD), then register as a legal entity with the Ministry of Interior (MoI) and finally, the Ministry of Land Management, Urban Planning and Construction (MLMUPC) can issue a CLT.

Consequently, Indigenous Communities’ customary rights are in the hands of the three Ministries, rendering the determination of Indigeneity and customary territory firmly in the hands of the state. Between 2011 and 2020, MLMUPC issued CLTs to 33 villages out of 152 registered Indigenous Communities registered with the MoI (MoP, & MRD, 2021). IPLCs and supporting NGOs engaged in the titling process state that the process is arduous and time-consuming (Keeton-Olsen, 2021). Further, CLTs exclude Khmer communities and Indigenous Communities the State does not formally recognise as such.

External boundaries of CLT can be determined according to a community’s customary land area, in agreement with neighbours and state agencies (Land Law, 2001, Art.25). However, these provisions in the Land Law are not supported in Forestry Law (2002), connoting that Indigenous tenure is not fully supported within demarcated State forests which undermines provisions enabling Indigenous Communities to define their boundaries according to a community’s customary land area. Indigenous Communities can apply for CLT over residential land, agricultural land, ‘reserved land necessary for shifting cultivation’, spiritual forests and burial forests; the latter two are limited to 7 ha (Sub-Decree No.83, 2009, Art.6). However, in practice when titles are granted, they are granted over a fraction of customary land, as land claims often overlap with Economic Land Concessions (Keeton-Olsen, 2021). An Indigenous community in Stung Treng Province were granted title over 13% (941 ha) of their 7000 ha customary territory (Keeton-Olsen, 2021).

Exclusionary rights are stipulated. Any infringements on Indigenous Communities’ land by responsible managing authorities are subject to fines between USD370 and USD2,215 or imprisonment for two to five years (Land Law, 2001, Art.265). Communities do not have the right to sell land, which may interfere with any customary practices concerning the sale of land parcels to members within or outside the community (Sub-Decree No.83, 2009).

Vietnam’s Land Law (2013) contains some provisions towards recognition of ‘community’ rather than ‘customary’ tenure over houses and other land-attached assets. The Land Law (2013) uses the term community primarily as a jurisdictional category referring to people residing in the same village, street quarter or residential area sharing the same customs and practices or family line (Land Law, 2013, Art.5). It, therefore, does not necessarily follow the concept of customary communities. Although it may be possible for multiple villages to apply for customary ownership over houses and other land-attached assets.

Further, Ironside (2017b)¹ noted that ‘National Assembly members questioned draft provisions for community ownership [within the Land Law], based on the lack of legal recognition of communities in the Civil Code’ (p.17). The Civil Code lacks provisions to formally recognise a community as an administrative unit (Ironside, 2017b). According to the Ministry of Natural Resources and Environment (MoNRE), issuing a land use rights certificate (LURC) requires stating which legal entity will receive the LURC and thus, formal administrative processes of issuing LURCs to communities are unresolved (Ironside, 2017b).

Provisions recognising community land tenure in the Land Law (2013) do not extend to rights to determine territorial land boundaries in line with customary laws. However, Vietnam’s Civil Code (2015, Art.107) does recognise customary land and property ownership rights.² According to the Civil Code (2015), land and property boundaries can ‘be determined in accordance with customary practice or according to boundaries which have existed for thirty (30) or more years without dispute’ (Art.175). Although Vietnam’s Civil Code does not yet provide an administrative process for recognising communities or customary lands.

Article 100 of the Land Law (2013) affirms that the State can grant a certificate of land-use rights and ownership to communities over houses and other land-attached assets, which include: ‘communal houses, temples, shrines, hermitages, worship halls or ancestral temples’; agricultural land allocated by the State to preserve traditions and customs (further detailed in Art.131); and land that is dispute-free and a Commune-level People’s Committee certifies as land collectively used by the community. Communities are also permitted to ‘directly manage land with historical-cultural relics and landscapes’ and ‘assume the main responsibility in the use of such land’ under the management of a Commune-level People’s Committee (Art.158). Land rights are restrictive, as communities cannot exchange, transfer, lease, or donate land use rights or mortgage land or land use rights (Art.181). The Land Law (2013) specifies that any construction or expansion of communal buildings declared in Article 100 must be permitted by state agencies (Art.160).

In Vietnam, communities may also draw up voluntary codes of conduct to promote self-governance in line with protecting natural resources, preserving and promoting traditional cultural values and customs whilst ensuring regulations do not violate human or civil rights and ensure gender equality (Decision No. 22/2018/QD-TTg, Arts.3 & 4). The Civil Code mandates that voluntary codes of conduct must gradually eliminate outdated customs, practices, and superstitions (Decision No. 22/2018, Art.5). It is up to the Ministry of Culture, Sports, and Tourism to guide progressive or ‘outdated’ customs, leaving considerable power in the hands of ministers to decide on the suitability of a community’s customary practices. Such provisions may be helpful if used to gradually eliminate discriminatory customs and practices. However, participatory processes should be undertaken with civil society oversight and communities to ensure that non-discriminatory customary norms are respected, as are a community’s desires to maintain certain customary norms and practices.

In Myanmar, the Law Amending the Vacant, Fallow, and Virgin Lands (VFV) Management Law (2018) provides, only in principle, provisions for the protection from offences and penalties under said law of customary lands designated under the ‘traditional culture of the local ethnic people’, hillside farming (Taungya land) and ‘lands currently used for religious, social, education, health and transportation purposes of the public and ethnic people’ (VFV Law 2018, Art.26). The Land Acquisition, Resettlement and Rehabilitation Law (2019) also states that people wishing to acquire land ‘used by ethnic groups for traditional purposes and sites being protected as sacred places’ must obtain approval from the national government (Art.15). However, neither law contains provisions for administrative processes to recognise and protect customary lands nor a clear definition of natural resource management and ownership within customary land. Further, the amended VFV law effectively required people to register their lands within 120 days or become illegal. Ra and Ju (2021, p. 500) note that

for many, registration under the existing conditions and circumstances was either impossible or a losing proposition. As a female land activist from LIOH put it ‘a modest farmer is turned into a criminal but the companies become the land owners. This draft law enables land grabbing at any time and to sue farmers when they wish

Lao PDR’s Land Law (2019) permits the State to allocate customary land use rights to ‘Lao citizens including legal entities and organisations’ (Art.127). Lao citizens can acquire customary use rights ‘of land that they occupy and use through clearance, development, protection and regular use of the land for more than twenty years before’ the Land Law (2019) came into effect (Art.130). To determine external boundaries, Citizens must obtain certification from village administrative authorities and adjacent landowners on their peaceful and continuous occupation (Land Law, 2019, Art.130).³ Recipients have the right to transfer (through sale, exchange, assignment, or donation) and inherit land use rights (Land Law, 2019, Arts.127,128 & 129).

However, provisions in Lao PDR’s Land Law do not reference collective or community-based regimes concerning customary land use rights indicating that these provisions within the Land Law do not adequately protect customary tenure systems (Derbidge, 2021). It is reported that government officials interpret the law to include communities, although there are no clear regulations on how community-based customary land use will be recognised or formalised. Further, MRLG and LIWG (2021) suggest that the requirement of ‘20 years of regular use is regarded as highly problematic and would exclude many people who have legitimate customary rights from claiming their rights, particularly those who have had to relocate their village and those using swidden cultivation’ (p. 51).

In Laos, collective management of one or more villages are recognised, not over customary territory but, over specified resources and buildings, including ‘cemeteries, sacred forest, common ponds, temples, schools, health centers, village administrative office and village markets’ (Land Law 2019, Art.81). Communities are not permitted ‘to transfer, sell, exchange, or lease the land use rights, nor granting of concessions or use of the right as a share in a joint venture or as collateral’ of such properties (Land Law 2019, Art.81).

Lastly, in CLMV, the State can reclaim land for national interests, emergencies, public purposes, economic development projects, national defence, or security purposes, adding to tenure insecurity (Cambodian 2001 Land Law Art.26; Cambodian Law on Expropriation, 2010; Laos Land Law, 2019, Art.147; Myanmar Land Acquisition, Resettlement and Rehabilitation Law, 2019; Vietnam Land Law, 2013, Art.26). Cambodia’s Expropriation (2010) and Land (2001) laws contain provisions for dispute mechanisms over land claims or avenues for compensation. However, despite some success, these mechanisms tend to favour land and resource commoditisation that benefits the State (Ngin & Neef, 2021).

Laos’ Land Law (2019, Art.162) states that land disputes can be settled via mediation, arbitration, lodging a complaint to a court or international settlement. The Land Law (2019, Art.130) notes, ‘While land registration has yet to be conducted for issuance of individual land titles, the State recognises and protects the customary land use right of the person’. Compensation for losses is addressed in Articles 152–155 of the Land Law (2019). It may be possible for multiple individuals to dispute the acquisition of customary lands. However, there are no regulations on the recognition of community-based customary territory, and there are gaps concerning processes to defend community-based customary land disputes.

Myanmar’s Land Acquisition, Resettlement and Rehabilitation Law (2019) states that the law should not harm ethnic minorities and traditional owners (Art.50). If the land is ‘used by ethnic groups for traditional purposes’, other organisations outside the community wishing to acquire land must acquire permission from the Assembly of the Union (Art.15). Although these powers exist in theory, they have not been used to legislate the recognition or protection of customary land tenure in Myanmar. Further, no mechanisms are provided that enable a community to challenge a decision by the State or Regional government, but communities may be legally entitled to compensation.

In Vietnam, land users of land recovered by the State are entitled to ‘compensation, support and resettlement’ (Land Law, 2013, Art.26). If communities possess a land-use certificate, the People’s Court can settle land disputes (Art.203). For communities without land-use certificates, disputes can be settled with a People’s Committee or by filing a lawsuit with the People’s Court (Art.203). Although communities are not recognised as legal entities in the Civil Code, it may be difficult to file a lawsuit in court without land-use certificates. Wells Dang et al. (2015, p. 3) summarise:

Official figures show the extent of the problem: in 2014, 90% of the complaints received by the government related to land disputes, including 98% of complaints to the Ministry of Natural Resources and Environment (Dang Linh 2015). Of roughly one million land-related complaints since 2003, the National Assembly’s Standing Committee reports that ‘only around half…were correctly, or partially correctly, handled’ (TuổiTrẻ 2012)

Land protests in Vietnam are often related to ‘poverty …… forced displacement, poor compensation, and perceived official corruption’ (Wells Dang et al., 2015, p. 3).

Table 1 summarises Customary tenure provisions over communal lands in CLMV.

Customary tenure provisions through forest laws

State forests are a jurisdictional category imposed over IPLCs’ customary tenure. Provisions for CT in the section discussing customary tenure over land generally do not pertain to land demarcated as State forests; with the exceptions of Myanmar’s VFV law (2018) and Land Acquisition, Resettlement and Rehabilitation Law (2019) and Vietnam’s Civil Code, neither of which contain a substantive mechanism to safeguard customary territory. Provisions in Cambodian and Laos laws permit community management of spirit and burial forests.

The Vietnamese Law on Forestry (2017) defines forests ecologically as an area of at least 0.3 ha with trees of at least 1 m (Art.2). Cambodian law defines forest as land where forests dominate and are not owned by private individuals (2005 Sub-Decree 53, Art.2). Laos’ Forestry Law (2019, Art. 2) defines forests as a resource with a ‘specific ecology, which consists of biodiversity, water sources and land with various tree species growing naturally or planted in an area more than zero point five (0.5) Hectares with crown cover more than 20%’. Myanmar’s (2018) forest laws do not define forests ecologically but define forest land as ‘land including reserved forest and protected public forest’. State forests are also determined through statutory means by state agencies mapping and demarcating forest boundaries and classifying forest types (i.e. private forest, public forest, protected forest, conservation forest, watershed area, etc.).

In CLMV, provisions for respecting CFT in the demarcation and classification of State forests are built into forestry laws. In Cambodia and Myanmar, state agencies must consult with local communities when classifying forests (Cambodian Law on Forestry, 2001, Art.31; Myanmar Forest Law, 2018, Art.6) or developing Protected Area management plans (Law on Protected Areas, 2008, Art.18; Myanmar Conservation of Biodiversity and Protected Areas Law, 2018, Art.13). In Myanmar, any grievances arising from Protected Area establishment are to be investigated by a Scrutiny Body, including the local community and representatives of NGOs (Conservation of Biodiversity and Protected Areas Law, 2018, Art.9). However, in practice in Myanmar consultations with communities rarely occur (Woods, 2019).

In Vietnam, when the State allocates, leases, repurposes, or appropriates forest land, it must do so by ensuring ‘publicity and transparency with the participation of local people; no discrimination against religions, beliefs or genders when allocating or leasing out forests’ and respect the ‘living space and customs of the communities’ (Law on Forestry, 2017, Art.14). In Laos, local people have formal opportunities to participate in forest boundary demarcation at the village level with State village authorities (Forestry Law, 2019, Art.47–49); although in the past, forest demarcation limited customary access to land and forest (Fujita & Phengsopha, 2012).

Although essential, provisions for respecting customary tenure in forest demarcation and classification processes do not account for customary access, resource use, management, exclusion, and governance. Such rights within State forests are provided to IPLCs via two arrangements: unrestricted access within Production, Protection without management, governance, ownership, and exclusion rights; and restricted resource access and use within allocated CFs with management, governance, and exclusion rights. The section will now summarise CFT provisions over State forests via these two arrangements.

Local peoples’ access and use within production forests

Cambodia, Lao’s, and Myanmar’s legal frameworks provide limited legal rights (specified as customary or not) for IPLCs to access and use resources in Production Forests. These rights do not extend to resource management rights or provide IPLCs with the ability to exclude other resource users from their customary territory. Vietnam’s laws only permit access and use rights within allocated CFs, which we discuss in the following sub-section. In all countries, resource use in the Protection of Conservation Forests is only permitted within CFs. In practice, a lack of statutory recognition does not prevent IPLCs from negotiating with local authorities to gain a certain level of autonomy over resource management within State forests (Lin & Liu, 2016).

The Cambodian Law on Forestry (2002) permits the customary subsistence user rights of local communities living within or near Production Forests (Art.40). Traditional user rights are comprehensive and include collection of dead wood, picking wild fruit, collecting honey, taking resin, and collecting other forest by-products; using timbers to build houses, stables for animals, fences, and to make agricultural instruments; grass cutting or unleashing livestock to graze within the forests; using other forest products & by-products consistent with traditional family use (Art.40). Further, the Cambodian Law on Forestry (2002) protects customary resin tapping and spirit trees by prohibiting the harvesting of said trees (Art.29 & 40), although noting that protection can only be safeguarded within certified CLTs and CF areas. Additionally, Indigenous Communities who have traditionally used State forestland for ‘harvesting forest sub-products and sources for water use’ can ‘continue to use and enjoy benefits according to its tradition’; however, to do so, they need to enter into an agreement with relevant state institutions (Sub-Decree no. 83, 2009, Art.7).

In Myanmar, harvesting forest produce is permitted at specified levels for personal use without acquiring a permit in Production Forests (customary use is not referred to) (Forest Law, 2018, Art.17). Forest produce includes wild animals, insects, their parts, and their by-products, and ‘trees, leaves, flowers, fruits, rhizomes (rootstalks), orchids and other parasitic plants and their by-products’ (Forest Law, 2018, Article 2). Ethnic groups also have the right to ‘preserve and reveal not to extinct their traditional medicine and to carry out development of it’ (Ethnic Rights Protection Law, 2015, Art.4).

In Cambodia, local people are permitted to barter or sell forest products other than timber without requiring a permit if harvesting is in-line with subsistence use; anything above requires a permit. In Myanmar, local people are only permitted to use forest produce for domestic purposes. In Laos, households can harvest NTFPs from natural forests ‘as a food source that grows seasonally’ for daily use for non-commercial purposes (Forestry Law, 2019, Art.63).

The use rights discussed in Cambodia, Laos and Myanmar hold little protection as the State retains management and governance rights, and communities cannot exclude people from their customary territory. Further, the State can allocate forest land as an economic concession or reclassify forest land as private land or land under strict conservation, cutting off customary access to local communities. For example, in Myanmar, the State or Regional Cabinet may ‘alter the category of the whole or a portion of the reserved forest; cancel the category of being a reserved forest; convert into a protected public forest’ (Forest Law, 2018, Art.7).

Myanmar’s Forest Law (2018) stipulates that people dissatisfied with a decision conducted under the law can appeal to the Forestry Administration (Art.36–38), although this is rarely applied in practice. In Laos, while no mechanism is offered as a tool or approach to resolving disputes in forestry law, the Land Law (2019, Art.162) states that land disputes can be settled via mediation, arbitration, court, or international settlement. However, in Myanmar and Laos, disputes may only apply to the limited resource rights granted to communities in Forestry laws.

Customary tenure recognition through community forestry and community protected areas

Allocating customary land within State forests to communities as CFs or Community Protected Areas (CPAs) provides the primary and most accessible pathway to securing customary forest tenure. CF/CPA programmes were primarily developed as a tool to alleviate poverty, improve forest conditions, and empower communities in sustainable resource management (Maryudi et al., 2012). Nevertheless, CF/CPA approaches may partly provide a mechanism for safeguarding customary forest tenure.

In CLMV, the power to allocate CF/CPA land and determine CF/CPA boundaries are primarily in the hands of state agencies which often restricts the size of customary land, altering customary boundaries, which may alter customary practices. In Cambodia and Myanmar, sub-national agencies determine the size and boundaries of CFs through participatory approaches and other factors such as location, climatic conditions, forest resources, number of households and capacity of community forestry members. In Laos, CFs are a jurisdictional category allocated for forestland within village administrations, and villagers may work with village authorities to demarcate village forest boundaries and categories (Forestry Law, 2019, Art.114).

In Vietnam, when allocating or leasing out forest land (Protected and Production Forests), the State has determined to ‘give priority to ethnic minority people, households, individuals and communities having traditional customs, culture or beliefs associated with forests’ (Forestry Law, 2017, Art.14). However in practice, only 8% of State forests are allocated to communities as CFs, compared to approximately 57% allocated to State organizations, and areas allocated to communities are often of poor quality (Giang & Thang, 2020).

In Vietnam, Provincial District and Commune Level People’s Committees are responsible for CF allocation and boundary demarcation (2017 Forestry Law, Art.102). The Law on Forestry (2017, Art.2) limits the definition of a community to people sharing customs and practices within a village, street quarter or residential area; though multiple villages can be allocated forest land jointly. In practice, local authorities are often reluctant to allocate forests to communities as ‘formal guidelines for implementation are impractical and not adapted to the local context. Local authorities are afraid that they will be held accountable when community forestry fails to protect the forest’ (Giang & Thang, 2020, p. 3).

Tenure is limited to fifteen years in Cambodia, thirty in Myanmar, and fifty in Vietnam. Restrictive tenure upholds the State as the legitimate forest owner and disregards long-term customary relations between communities and their traditional territory. CLMV CF/CPA communities are provided with management/co-management, exclusion, land and resource use, and access rights. CF communities cannot transfer, sell, or mortgage CF land but may be permitted to inherit land plots or assets within the CF. Importantly, Laos’ and Vietnam’s legal framework indicates that it may not be possible to divide CF land or manage land individually, which may run counter to any customary practices of individual management of land plots. Legal restrictions to sell land economically restrict communities as they cannot use their land or home as collateral for a loan or sell land for profit. Equally, restrictions on the sale of CF land may prevent the elite capture of land and resources within a CF (Chimhowu, 2019). However, the establishment of CFs may not necessarily protect the community from land grabbing by those inside or outside a community or the CF being declared an economic land concession (Neef & Touch, 2016).

To formally manage CF/CPA land and resources, provisions in CLVM’s legal frameworks require communities to develop a management plan with, and approved by, state agencies. In Cambodia, Myanmar, and Vietnam, CF communities can also formulate community rules and regulations which State agencies must endorse. However, land and resource use permitted within management plans and internal rules is primarily dictated and restricted by forest laws and CF regulations, determining the space within which customary norms can be practised. Table 2 presents an overview of rules and regulations dictating land and resource use in CFs in CLMV.

Lastly, in all countries, the State can decide to reclaim CFs/CPAs. In Cambodia, the State can reclaim CFs ‘if there is another purpose which provides a higher social and public benefit’ (Sub-Decree No.79, 2003, Art.28). The Forestry Administration Cantonment are required to give a CF Management Committee a six-month written notice outlining the reasons for termination; during such period, the Forestry Administration should negotiate with the CF Management Committee to ‘determine the fair policy for the Community’s loss’ (Sub-Decree No.79, 2003, Art.28). The Nature Conservation and Protection Administration can revoke CPAs if they deem a community in breach of its terms (2008 Law on Protected Areas, Art.25); no compensation methods are provided.

In Myanmar, if a District officer finds a CF User Group (CFUG) negligent or in violation of laws, they may revoke the CF certificate with the approval of a State/Regional Forest Officer (CFI, 2019, Art.18). CFUGs dissatisfied with the decision may file an appeal with the Forest Department Director-General (CFI, 2019, Art.18). CFUGs are also entitled to claim compensation ‘for values of crops and other losses due to implementation of other projects’, for which the Forest Department must assist the CFUG legally and coordinate with concerned departments and organizations in order to get the compensation” (CFI, 2019, Art.20). However, in practice, such provisions may not be applied under the current military regime.

In Laos, district administration authorities allocate forests and forestland to village administrations; thus, district authorities determine continued local participation in village forest management (CFs). Compensation provisions apply to forestlands and assets that individuals, households, legal entities, and organizations have developed via personal financing (Forestry Law, 2019, Arts.60 & 82). In Vietnam, the State or District People’s Committees in Vietnam can decide to recover, repurpose, or appropriate the forest land of communities (Land Law, 2013; Law on Forestry, 2018). Forest owners (including communities) have the right to receive State compensation over forests and assets that they have lawfully invested in (Law on Forestry, 2018, Art.73) or if the State revokes forest ownership for national means (Art.22).

Customary tenure legal recognition for swidden cultivation

Vietnam’s Law on Forestry (2017, Art.102) states that swidden cultivation on forest land is not permitted. In Laos, swidden cultivation is restricted. Provisions within Laos Forestry Law (2019) require the government and local administration authorities to restrict uncontrolled swidden cultivation and promote a shift amongst villagers living in forest areas towards sedentary livelihoods (Arts.53 & 118) ‘in order to protect the forest and to end uncontrolled shifting cultivation’ (Art. 118).

In Cambodia, land reserved for swidden can be considered part of Indigenous Communities’ immovable property (Land Law, 2001). However, the Law on Forestry (2002) specifies that swidden cultivation is only permitted within CLTs and CFs (Article 37) and the community zone of Protected Areas (Protected Area Law, 2008, Art.11). The Forestry Administration is authorized to manage and control swidden cultivation activities with CFs (Law on Forestry, 2002, Art.37) and regulate the specific periods of time swidden agriculture can take place (Sub-Decree No.79, 2003, Art.11). Such provisions may infringe on customary management or reduce swidden areas, potentially causing communities to shift from swidden towards permanent agriculture, altering customary practices.

The term ‘Swidden Cultivation’ land is excluded from Myanmar’s VFV law, which contradicted a specific provision in the 2019 National Land Use Policy to exclude customary territories from government lands. Shifting cultivation is now addressed in the Farmland Amendment Law (FAL) (2017), which recognises swidden cultivation as a subcategory of farmland. Yet, while the Farmland Amendment Law recognises swidden land, it places swidden cultivation under government, not customary ownership. Swidden lands are treated as an economic asset to be utilized by individuals and managed by the state. The FAL also limits crop choices and fallow periods. Failure to comply with the requirements can result in the State revoking a permit or re-appropriating land (Arts.3 & 19).

Discussion

Although CLVM legal frameworks contain provisions for safeguarding certain aspects of CFT, they remain insufficient and unsuitable for effectively safeguarding CFT. As highlighted in the introduction, advanced by colonial administrations and continued in partnership between state and post-colonial organisations (such as FAO), laws and jurisdictional governance processes in Southeast Asia primarily conceptualise forests as a separate land management and juridical category from agricultural or residential land (Vandergeest & Peluso, 1995, 2006b) and involve ongoing actions to reduce or eradicate shifting cultivation from the landscapes (Pichler et al., 2021). This contributes towards the fragmentation of legal recognition and rights (access, use/withdrawal, exclusion, transfer, and ownership) over customary territory, and land and resource rights within said territory, and restrictive forest rights, undermining the development of effective CFT legal safeguards and recognition processes.

Cambodia’s Sub-Decree (2009) confers community-based ownership over customary land to registered Indigenous Communities and a limited 7 ha burial and 7 ha of spiritual forests, with further forest exclusion, management, and use rights to a limited area of forest land as CFs/CPAs. Land ownership (CLT) can only be conferred to Indigenous Communities formally registered with two Ministries. As such, the State retains control of the determination of Indigeneity and CFT.

Myanmar’s and Lao’s legal frameworks provide entry points to confer both lands and forests from the State to customary ownership. However, Myanmar’s amended VFV law rendered unregistered IPLCs illegal within their customary territory (Ra & Ju, 2021). In Laos, the law does not reference collective or community-based regimes concerning customary land use rights (Derbidge, 2021); although government officials in Laos generally interpret the law to include customary community tenure. There are also significant gaps in regulatory processes to formalise customary tenure over both land and forests in Laos and Myanmar.

In Vietnam, community rights to obtain a LURC correspond to a statutory jurisdiction (village or residential area), not necessarily customary territory. Further, as a community is not recognised as an administrative entity, processes for registering LURCs remain legally ambiguous. The LURCs do not extend to forest land, and although forest allocation to communities sharing traditional customs, culture or beliefs is possible, the Vietnamese State maintains a high level of control over such allocation leading to a small percentage of forests being allocated to communities (Giang & Thang, 2020).

Cambodia’s, Laos’ and Myanmar’s legal frameworks provide access and use rights within Production Forests, yet these use rights hold little protection as the State retains management and governance rights and, as such, can allocate forest land as an economic concession or reclassify forest land as private land or land under strict conservation, cutting off customary access to local communities. Therefore, in CLMV, CF/CPAs provide the primary mechanism to confer management and exclusion rights to communities within forest areas. However, CF/CPA laws are not designed to support CFT. CFs/CPAs are primarily determined through utilitarian logic whereby forest resource use is permitted for household or collective subsistence purposes in an area that does not necessarily correspond with the customary territory. Communities’ cultural and spiritual connections to customary territory are only marginally accommodated (Table 2). Management rights do not confer ownership over forestland and are granted for a limited period, undermining customary relations. Further, forest laws and regulations primarily dictate and restrict land and resource use, leaving limited space for customary norms and practices to legally determine land and resource management and governance.

Swidden cultivation is not legally permitted in Vietnam and is restricted in Cambodia, Lao, and Myanmar. In Myanmar, formalisation mechanisms limit swidden to state-owned and administered areas, not customary ownership, and regulations specify fallow periods and crop choice. In Cambodia, communities hold ownership over swidden land within CLT areas, and the Forestry Department manages and controls swidden cultivation activities within CFs. As discussed previously, altering land management practices away from swidden cultivation may alter customary norms and practices (Andersen, 2016; Mann & Luangkhot, 2006).

CLMV’s legal frameworks provide the State considerable control over customary forest lands and resources. To safeguard CFT, legal provisions are necessary that confer community ownership, management and governance rights over land and resources within the entirety of a community’s customary territory, including residential areas, forested areas, agricultural land, swidden lands, grazing areas, water sources, and additional infrastructure, etc. Statutory recognition of CFT may require harmonisation of legal frameworks, particularly between the land and forest laws, adequate coordination between relevant Ministries, and clear procedural guidelines. Further, CFT should be imbued with the same protections afforded to private property (Alden Wily, 2017), with communities able to determine their boundaries upon negotiations with neighbours. It is recommended that CFT formalisation processes should be voluntary, and legislation should ensure that said processes do not infringe on customary norms, practices, governance, resources, territory, or livelihoods (Alden Wily, 2017).

Uganda’s constitution provides an alternative example of how a state can safeguard customary tenure. In Uganda, ‘all land is directly vested in the citizens of Uganda and shall be owned in accordance with customary, freehold, mailo, or leasehold regimes’ (Alden Wily, 2017, p. 466). Alden Wily’s (2017) remarks that this clause ‘unburdens’ the State of most of its land (p. 466).

The effect is for example, as customary regimes do not require rights to be formally registered in order to be upheld, customary landowners in Uganda may apply for certificates of customary ownership – but need not necessarily do so in order to secure legal protection of that ownership.

However, ceding territory via transferring forests from State ownership to IPLCs in CLMV may require a great deal of political will, which past forest governance practices have not evidenced.

The formalisation of CFT through legal frameworks only presents one piece of the governance picture. As Ribot and Peluso (2003) and Sikor and Lund (2009) recognise, it remains vital to understand how legal rights interact with local social and governance dynamics and affect land and resource access. State-directed tenure formalisation processes can result in the erosion of CFT. IPLCs continue to remain autonomous in remote areas where forestry officers cannot always retain authority (Ironside, 2017b). Statutory recognition of CFT can encroach on IPLCs’ autonomy and extend State power into areas previously ungoverned by State rules leading to a restriction of resource access and altered customary dynamics (Chimhowu, 2019; Nightingale & Ojha, 2013). Further, statutory recognition of CFT may not address, and may even adversely impact, issues of social and gender equality within and among communities (Persson & Prowse, 2017), land grabbing by local elites (Chimhowu, 2019), altering customary norms and practices due to economic dynamics (Andersen, 2015; Mann & Luangkhot, 2006).

To minimise adverse impacts on CFT, policies toward statutory recognition should be developed from the ground up. Springate-Baginski and Kamoon (2021) describe how in Myanmar’s Shan State, civil society groups have been working with the communities from the ground up to enable communities to share a common understanding of CFT systems, through which they are developing the outlines of a legal framework which will “recognise and protect Shan State communities’ customary rights and livelihoods” (p. 557); however, major uncertainties remain after the 2020 political coup in Myanmar on how and when these interventions may resume. Establishing CFT legal safeguards from the ground up is even more vital, as a ‘one size fits all model’ for CFT may not account for the myriad forms CFT takes. In several African countries, processes by which communities, often working with government officers, identify and map their customary resource rights within their customary territory are recognised and protected by statutory law (Freudenberger et al., 2013), showing that symbiosis between self-recognition mechanisms and statutory systems can chart a path toward safeguarding CFT.

Finally, regional tools to guide policy-making processes on recognising customary tenure can be an added pathway to the ground-up approach. The recently developed ASEAN Guidelines on the Recognition of Customary Tenure in Forested Landscapes (under the ASEAN Working Group on Social Forestry) offer a promising framework to advance communities’ customary tenure and guide Member States to do so in the region.

Acknowledgements

This work was supported by the Mekong Region Land Governance project (MRLG). MRLG is a project of the Government of Switzerland, through the Swiss Agency for Development and Cooperation (SDC), with co-financing from the Government of Germany [email protected] the Government of Luxembourg.

Disclosure statement

No potential conflict of interest was reported by the authors.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Additional information

Funding

The work was supported by the Chulalongkorn University, Graduate School [Ratchadapisek Somphot Fund for Postdoctoral Fellowship]; The Mekong Region Land Governance Project.

Notes

1. Ironside gained these insights through interviewing a Ministry of Natural Resources and Environment (MoNRE) representative.

2. Multiple ownership in the Civil Code Art.211 includes a ‘family line, hamlet, village, tribal village, mountainous hamlet, ethnic hamlet, religious community, or other community of property which is formed in accordance with customary practice’.

3. Individuals and households can also gain certification over grazing areas, rice field gardens and can sell and transfer said rights (Land Law, 2019).