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A landmark decision of the Cambodian Justice to stop encroachment on Indigenous registered Land
With the support of Vishnu Law Group, the Indigenous Community of O’rana has filed a case in justice against encroachers who were occupying their land. After a first negative decision from the Court of First Instance, the Court of Appeal has ruled in their favor, and decided that all encroachment should be stopped.
This decision is quite important, as it is the first case among the six communities who have gotten collective land titles where they won a case in justice and it is therefore a model for other indigenous’ community because the community titling process is complicated and takes a long time. These communities need to see that when they register land collectively, titles can protect their rights and secure ownership for the long term. If this is not possible, communities will break down and lose their cultural identity.
Indigenous communities in Cambodia are remarkably dependent on agriculture and forest areas for their
livelihoods and for the survival of their cultural identity. In Cambodia the law protects indigenous communities who can apply for a communal land title to protect their customary lands against the encroachers who come and occupy their land to plant cassava, rubber, cashew etc, either by obtaining the land from the local authorities, or through Economic land concessions. However, the process to obtain these titles takes several years, and in the meantime often the lands are illegally occupied. Until recently, the IP could not secure their lands in such cases, because of the lack of awareness on the part of the justice system and the offenders are taking advantage of weak rule of law.
The Indigenous Community in O’rana village located in Mondulkiri province is represented as Phnorng indigenous community consists of 80 families which equal to 373 people (8, March 2009 statistics). Since 2009, the community had been registering as Phnorng Indigenous community with Ministry of Interior in order to apply for customary land title. However, while the community was in the processing of applying land title the two plots of lands have been occupied by the 6 encroachers in 2012. There are 11 encroachers, the three of them are the neighborhood villagers who have cleared the land on the plot of land of the size of 3.46 hectares. Another three encroachers are the outsiders who come from KeoSima district, one of them is the nephew of Mondolkiri’s prosecutor, and the other two are the solider, and ordinary people, unfortunately Vishnu has not been able to identify all their identities, so Vishnu decided to file the complaint against 6 encroachers -three of the encroachers who are not the neighborhood villagers cleared the parcel land on the plot of 228.22 hectares. Even though, the Department of Land in Mondolkiri issued a collective land title for O’rana village in 2013 the encroachers was still clearing the community’s land and planting the cassava.
The community, with assistance from Wildlife Conservation Society (WCS) and a lawyer, filed two complaints to the provincial Mondulkiri Court of First Instance: (1) an injunction motion to prevent these parties from conducting further activity on the disputed land and (2) a criminal complaint against encroachers for the illegal occupation of another’s property- the purpose of complaint is to get the encroachers be responsible for their illegal acts as well as to warn to other encroachers in other indigenous communities. In late January 2015, the court dismissed both complaints in favor of the encroachers. In coordination with WCS, the community requested Vishnu to take up these matters and defend the case more vigorously. In March 2015, Vishnu Law Group filed a complaint to the higher Court of Appeals against the dismissal of the criminal complaint and civil action by the Court of First Instance. After two months of meetings with judges to present evidence, depth explain the facts, indigenous customary use and occupation and the rights on the land, the
judges over turned the dismissal of the civil action by issuing an injunction on May11, 2015 requiring the encroachers to cease all activities on the land. Prior to this, because of Vishnu’s intervention, among all the defendants, there are three of them who are the neighborhood villagers have realized their own mistakes and have agreed to give back the one plot of land of the size of 3.46 hectares that they have been occupied to the community. This decision is in a favor of the indigenous community in O’rana as they have really been worried about the exercising their right because of the current condition of the subject matter in the dispute that the defend parties from transferring, granting as donating, selling, exchanging, renting, putting as collateral, mortgaging.
With the support from QDF, Vishnu coordinated the implementation of the injunction decision. Vishnu submitted the application of implementation to the provincial court judge who then appointed the provincial prosecutor to implement the decision. Moreover, In July Vishnu have facilitated with the prosecutor and court clerk in order to push the case, and to inform to district officials, commune chief, village chief, representative of WCS, polices, and community’s representatives to implement the decision, so the three encroachers are aware that they are not allowed or legitimated to transfer of ownership of the land; moreover, they must immediately stop their activities on the land. In addition, in September Vishnu’s lawyers requested the Court of First Instance of Mondulkiri province to identify the real owner of the dispute land of the size of 228.22 hectares. Furthermore, Vishnu also assisted community to lease the three hectares of land to the farmers in the village under the satisfaction of all community’s members. Vishnu coordinated, prepared, and witnessed the lease agreement which provides the following benefit to the community: The lease will protect the land from other encroachers, and the community will get the lease’s fee to patrol their lands and to use in other purposes in sake of the land. Last but not least, Vishnu managed to push the Court of Appeal to summon the plaintiffs (community’s representatives) and defendants to provide more clarifications to the court related to the criminal complaint on 27th, October 2015. The criminal action will help to put more pressure on the encroachers and we expect that the defendants will be accused of their illegal action.
The Mekong Region Land Governance (MLRG) Quick Disbursement Fund (QDF) is designed to respond to urgent and/or new windows of opportunities in land governance for the benefit of smallholder farmers. The QDF currently supports Vishun Law Group (VSG) to implement the Representing IP Community in Orona Village against the Encroachment on their collective Registered Land (since July 2015).