Communities should be recognised as legal entities in their own right so that customary tenure can be incorporated into Vietnamese land laws, say civil society organisations.
But authorities warn the process of customary tenure recognition will be long and complicated, as it will require various ministries working in collaboration when drafting new land laws.
These were some of the reflections at a workshop in Viet Nam earlier this year, with the aim of encouraging more discussion on the topic, and giving stakeholders a clearer understanding of where customary tenure fits into land governance systems in Viet Nam.
The workshop followed on from a larger, regional workshop on customary tenure, hosted by MRLG and held in Naw Pyi Taw, Myanmar, in March, with the aim of conveying its outcomes to broader stakeholders in Viet Nam, and reflect influencing factors at the national level.
As is the case in many countries, customary tenure systems have existed for hundreds of years in Mekong region communities, especially indigenous communities, and have been developed and adapted by millions of farmers across Viet Nam, Laos, Cambodia and Myanmar.
These systems involve rules or norms that define how resources are allocated, used, accessed and transferred by individuals and communities.
They help to maintain economic, social, cultural and traditional values of such communities, and formal recognition of customary tenure will secure the rights of communities to access to land, forests, fisheries and natural resources for their living and identity.
At the workshop in Nghe An province on April 27, both speakers and participants emphasised the significant role of local communities in protecting forests.
At least one representative of the General Department of Land Administration reiterated that “the recognition of customary tenure, particularly in securing the rights of ethnic communities, is an inevitable trend in our society”.
But he warned that the process of recognition would be time-consuming, and would require a long process of establishing protocols.
“The recognition of customary tenure is a long-term process, which needs the efforts of local communities and civil society organisations for advocacy,” he said.
One obstacle for recognition has been the different interpretations of tenure rights in local Vietnamese law and international law, making it difficult to integrate the terms into varying land laws.
A second obstacle is that communities are not recognised as a legal entities in the Viet Nam Civil Code.
In fact, there is no definition of the term “community” in the Code at all, making it impossible to define the rights of a community to property in other laws.
Various NGOs have been advocating that communities be recognised as forest owners in the draft of a new forestry law; if approved by Congress, this could be the first success in recognising the rights of community to forest and forest land which mostly connect to their customary practices.
During the workshop, participants also emphasised that Viet Nam is a signatory to various international conventions, including the UN Declaration on the Rights of Indigenous People, that will be fundamental in reforming the country’s forestry laws.